Judges Have No Power to Rewrite Valid Wills - Guideline High Court Ruling

Judges have no power to rewrite your will after your death so as to achieve a result which, in their view, better reflects your wishes. The High Court made that point in upholding the validity of a Parkinson's disease sufferer's will although, at least in mathematical terms, it did not achieve equality between his four children.

By his will, the father left his beloved smallholding – which had recently been valued informally at £50,000 – to one of his sons. In an apparent attempt at even-handedness, he left each of his other children £50,000 in cash. However, by the time of his death six years later, aged 84, the smallholding was worth a six-figure sum.

Challenging the validity of the will, another of his sons argued that, due to his by then terminal illness, his father lacked the mental capacity required to make it. He said that his father was always scrupulous in treating his children fairly and that the unequal division effected by the will was a powerful indication that he neither fully understood nor approved of its contents.

Ruling on the matter, the Court noted that it had no discretion to rewrite a valid will to better reflect what it thought the father might have wanted if he could have foreseen the increase in the smallholding's value. An oversight or a change in circumstances after the making of the will was not enough to invalidate it.

The Court acknowledged that the apparent mathematical equality achieved by the will no longer existed when the father died. However, it was not possible to read his mind and there were a number of possible reasons, including oversight, why he did not make any provision for the chance of the smallholding rising in value.

In upholding the validity of the will, the Court noted that it was drafted by a solicitor in a manner that faithfully reflected the father's instructions. Despite his illness, he had the capacity to make a valid will. The fact that the consequences of the will after his death may not have been as he expected did not prevent the Court from finding that he knew what was in the document, and approved it.