Making a will? Transparency is best!
Posted: 23rd September 2019
Making a will is a private matter and you are entitled to play your cards close to your chest. However, as a decision of the First-tier Tribunal (FTT) showed, resorting to subterfuge or undue secrecy can sow the seeds of legal dispute after you are gone.
The case concerned a property which had for many years been owned and occupied by a mother and daughter as joint tenants. After they fell out bitterly, however, the mother changed her will so as to disinherit the daughter and leave her entire estate to her other four children. The daughter was deliberately kept in the dark about the new will until after her mother’s death.
The mother had also sought to sever the joint tenancy, converting it into a tenancy in common. If achieved, that severance would have separated the mother’s half share of the property from that of the daughter. In combination with the will, that would in turn have resulted in the other children inheriting the mother’s share of the property.
If, on the other hand, the property was still held under a joint tenancy at the date of the mother’s death, the mother’s share would have passed automatically to the daughter by survivorship. An issue therefore arose as to whether the joint tenancy had been validly severed and the executors of the mother’s estate referred the matter to the FTT for resolution.
In ruling on the matter, the FTT found that the mother’s solicitor had sent the notice of severance to the property under cover of a letter addressed to the daughter. However, she had not received it because her mother and one of her brothers had conspired to wrongfully intercept it. The brother had played a manipulative role in order to ensure that everything was done behind his sister’s back.
In those circumstances, a ruling that the notice had been validly served on the daughter would be repugnant and tantamount to using the law as a vehicle to permit the brother’s deliberately wrongful conduct. The FTT concluded that the notice of severance was of no effect and that the joint tenancy persisted on the date of the mother’s death. Her share of the property thus did not fall into her estate and passed to the daughter when she died.