21 February 2022

The High Court’s judgment handed down on 8 February 2022 serves as a stark warning to those who own assets where the asset value may fluctuate over time. 

In this case the testator drew up a Will in 2011 which provided for a smallholding to go to one son, the claimant, and £50,000 to each of his other three children. The residue was to be split into four equal shares in favour of the four children. At the time of drafting the smallholding was worth £50,000. However, at the death of the testator in 2017, the value of the smallholding had risen to £110,000. 

The defendant, the testator’s other son, sought for the court to find the Will invalid on the basis that the testator did not know and approve the contents of his Will. He argued that the inequality in value was not intended by the testator and therefore the testator could not have understood his Will. 

The judgment made the court’s position clear and confirmed a change in circumstances after execution, such as fluctuations in value, does not undermine the knowledge and approval that the testator had at the point of execution. This conclusion extends to where the change in circumstance results in unintended consequences. 

This case highlights the trap that many fall into – a change in circumstance between execution and death can result in your loved ones benefitting in a way which was not intended at the time the Will was written.

Three Tips to avoid the trap

1. Keep your Will under review

If you have a Will in place, keep it under review to ensure it deals with your assets appropriately, even when circumstances in your life change. By doing so you can ensure that any change in asset value is accounted for and people benefit as intended. 

2. Division by value 

Skillett v Skillett is a reminder that asset values can and will change over time. Not only can the value of assets go up, but they can also go down. We can advise on how best to divide your assets, giving you confidence that sufficient provision has been made for those you want to benefit. 

3. Statutory Wills

You may be in a position where your circumstances or those of someone you know have already changed. If this is the case and that person is unable to update their Will due to a lack of capacity, it is not too late. Our team is experienced in applying to the Court of Protection to direct the execution of a statutory Will which will constitute a new Will for that individual. 

We also have experience of complex Will drafting and applications to the court for statutory wills. If you have any question on the topics raised in this article or if we can assist with any other matters, please contact Jim Aveline or Sarah Carlyon

This article was written by Sarah Carlyon.


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Jim Aveline

Jim Aveline Partner

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