Testamentary freedom tested in Court

When making a Will you have complete testamentary freedom, meaning that you can leave your estate to whoever you choose.

As noted by the Judge in the recent case of Reeves v Drew & Ors [2022] EWHC 153 (Ch) (31 January 2022), a testator can ‘act out of pure spite, irrationality, nastily and capriciously, and they do not need to justify their dispositions by reference to notions of fairness, reasonableness or morality.’ However, as shown by this case, as a testator, you do need to have knowledge and approval of the contents of your Will when it is signed.

Kevin Patrick Reeves had built up a fortune of up to £100 million from nothing at the time of his unexpected death in February 2019. He had made two Wills, one in 2012 and one in 2014 and it was accepted by all parties that there was a dramatic difference between the two Wills.

The Wills

In his 2012 Will, Kevin left his Residuary Estate to be divided up so that 80% was divided between three of his children, Louise, Lisa and Bill and the remaining 20% was divided between his two grandchildren Ryan and Ria.

In his 2014 Will Kevin left 80% of his Residuary Estate to Louise and the remaining 20% to Lisa.

The case

Louise sought to uphold the 2014 Will, however Bill, Ryan and Ria alleged that that Kevin did not have knowledge and approval of the contents of the 2014 Will as he was illiterate and the Will did not represent his true wishes. They also alleged that Kevin had only executed his Will as a result of undue influence from Louise.

The Judge dismissed the claim that the 2014 Will was only executed by Kevin as a result of undue influence by Louise, however held that, despite Kevin’s impressive business acumen, he was actually quite far along the spectrum towards total illiteracy. The Judge therefore found that, in the circumstances of this case, Kevin did not have knowledge and approval of the contents of his 2014 Will and therefore it was not a valid Will. This was despite the fact that the Judge found that Kevin was of sound mind and that the Will had been duly executed.

What can we take from this case?

Perhaps the most important point to take from this case is that whilst a testator does have complete testamentary freedom, they must also have knowledge and approval of the contents of their Will. The testator in this case was found not to have knowledge and approval of the contents of his Will due to the fact that he was illiterate and he had never read the draft Will, meaning that his Will was invalid. This is not to say however that people who are illiterate cannot make a valid Will.

Where a testator is illiterate, a special attestation clause can be included in the Will stating that the Will has been read over by someone else to the testator who understood and approved the contents. These steps would ensure that the illiterate testator knew and approved the contents of their Will. Had these steps been taken in this case, it is likely that Kevin’s 2014 Will would have been valid, had he still chosen to execute it having knowledge and approval of the contents.

Therefore, it is important to see a qualified individual who is insured when dealing with an important document like your Will. Not only will they be up to date with the current legislation, but they may ask you questions which you had not even thought of before. Why leave such an important document to chance?

More information

Click here to read the full judgment online.

For more information please contact our Private Client department here.

This article was written by Jessica Newton, Solicitor in our Private Client Team. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of March 2022.