Do DIY wills simply invite litigation?

The High Court recently examined a dispute involving a "homemade" will and a defendant whose repeated failure to follow court orders led to a rare inquisitorial trial into the validity of a deceased parent’s final wishes.

Background:

The claimants, Ms. Itoweh Susan Ugolor, Mr. Uduoghene Hartley Ugolor, and Ms. Barbara Obatare Anwale Ugolor, challenged the validity of a homemade will dated 21 March 2008, purportedly drawn up by their late mother, Pamela Ayodele Festous, who died on 21 March 2020.

The first defendant, Mr. Cameron Eseh Ugolor, a sibling of the claimants, was named as the principal beneficiary and executor under the purported will, which left him substantially all of the deceased's estate, including a property at 41 St. Donatts Road, London. The claimants, who were not provided for in the will, challenged it on the grounds of lack of testamentary capacity, want of knowledge and approval, and undue influence. They also sought an account from the first defendant for the monies he had drawn from the estate.
Cameron’s conduct only complicated the litigation. Due to significant and continuing non-compliance with Court orders, he was eventually debarred from defending the claim.

Decision:

The Judge carefully applied the longstanding legal tests for the validity of a will. On the issue of testamentary capacity, the Court found that, although Pamela suffered from late-onset psychosis and delusions, these did not necessarily prevent her from understanding the nature of a will or the extent of her property.

Following the classic rule derived from Banks v Goodfellow, having "unusual" beliefs, or even mental illness, does not automatically disqualify someone from making a valid will unless those delusions directly poison their testamentary intentions.

However, the claimants succeeded on the ground of "want of knowledge and approval". The Court noted that the will was a highly technical document, likely "cobbled together" by Cameron himself rather than a legal professional. Because Cameron stood to benefit significantly and had personally prepared the document for a mother who was mentally frail and had poor eyesight, a high degree of suspicion was aroused. In such cases, the burden shifts to the person propounding the will to prove the deceased truly understood and approved the contents. Cameron, having been debarred and having failed to provide evidence, could not meet this burden.

Regarding the "Constructive Trust" claim, the Court was rather more conservative. While the siblings argued that Cameron had used undue influence to mortgage their mother's home for his own benefit while she was alive, the Judge found insufficient evidence of actual coercion. Under the strict rules of probate, "persuasion" is lawful and only an act of "coercion" that effectively overpowers the will is prohibited. Consequently, while the will was struck down, the Court did not order Cameron to repay the pre-death mortgage funds, although he was ordered to return nearly £60,000 in rental income and bank transfers taken after his mother’s death.

Implications:

This judgement serves as a powerful illustration of the court’s willingness to look behind the face of a document when the circumstances surrounding its creation are murky. It also highlights the danger of the "DIY" approach to writing a will. Homemade wills, especially those that deviate significantly from a person’s previously expressed wishes or the standard Rules of Intestacy, are magnets for litigation. When a beneficiary is involved in the drafting or execution of a will, they invite a level of judicial scrutiny that is often impossible to overcome without professional legal records.

The case also highlights the severe consequences of litigation misconduct. The Judge ordered Cameron to pay the claimants’ legal costs on an "indemnity basis". This is a punitive cost order reserved for conduct that is "outside the norm". By stubbornly resisting the claim and ignoring court orders, Cameron saw a significant portion of his potential inheritance swallowed by legal fees.

Ultimately, because the will was declared invalid, the estate was distributed according to the Rules of Intestacy. This ensured that the property was shared equally among the siblings, fulfilling what they contended was their mother’s true desire. For anyone concerned about the validity of a loved one's will or facing a similar family dispute, this case underscores the importance of early legal intervention and the value of the court's inquisitorial powers in protecting the integrity of a person’s final legacy.