The November High Court decision concerning the estate of Malcolm Chenery (“Malcolm”) highlights the flexibility of the courts in upholding a testator’s intentions despite an unusual approach to the making of the will. The case also draws attention to the risks posed by unconventional will formats.
Malcolm died in 2021 and his estate has been valued at £180,000 including a three-bedroom house. Malcolm explicitly excluded his sisters and nieces due to strained family relationships and ‘long-standing bad blood’, instead leaving his estate to Diabetes UK, after he previously lost family members to the condition.
However, the will – written on 3rd May 2021 shortly before his death by suicide – was very unorthodox, the first page was handwritten on the back of a Young’s frozen beer battered fish fillets box – while the second page on cardboard from a Mr Kipling’s mince pies box. Adding to the legal complications the attesting witnesses’ recollection was that they did not see the first page when signing the second.
The Charity successfully applied to the High Court for a ruling that the two pages could together be entered into Probate as meeting the requirements of Section 9 of the Wills Act 1837, which states that a will is valid if:
- It is in writing.
- It is signed by the testator.
- The signature demonstrates the testator’s intent to give effect to the will.
- It is witnessed by two individuals who are present at the same time to witness or acknowledge the signature.
- The witnesses each sign or acknowledge their signatures in the presence of the testator.
Despite the unconventional format and that the will was contained on disconnected pieces of cardboard, the High Court judge Master Katherine McQuail ruled that Malcolm’s will met the requirements. The Judge noted that:
- Both pieces of cardboard were written in the same pen, suggesting they were created at the same time.
- The will unambiguously outlined the testator’s intentions, which were supported by the absence of a challenge from family members and that it was described to the witnesses as a will.
- Courts traditionally seek to avoid intestacy when the testator’s wishes can be reasonably ascertained and the Court should not try to frustrate Malcolm’s wishes as endorsed by the cardboard document.
The Judge ultimately concluded ‘I feel satisfied that the two documents should be admitted in solemn form to probate as the last will of the deceased’.
Although the Courts can validate unconventional wills, relying on them doing so should be a last resort rather than ‘Plan A’. What is wrong with a good old piece of paper? and if running to more than one page, connecting the pages? It need not be fancy ribbon that you might see for a Will depicted in a television historic drama, but something at least to connect the pages of a document dealing with the entire accumulation of lifetime wealth. Engaging the services of a professional to make the will instead of going down the ‘DIY route’ is of course very sensible and would in Malcolm’s case have avoided the delay and cost of application to the Court.