Witness to will excluded from benefit?

(Paul) #1

I would be interested in the views of other practitioners to the following scenario.

A client’s will leaves his estate in trust. There is a power to add beneficiaries. His housekeeper is not a named beneficiary. The client has left a letter of wishes asking the trustees to consider making a payment to his housekeeper (having first added her as a beneficiary) if they are happy to do so. The housekeeper is one of the witnesses to the will. Is she precluded from benefit in the circumstances described?

Paul Davies

(Paul Saunders) #2

Whilst the power to add the housekeeper is in the will, to which she was a witness, her addition as a beneficiary will be in a separate document and subject to the exercise of the trustees’ discretion.

I understand that the primary reason a witness to a will cannot benefit under that will is to reduce the possibility of them exerting undue influence the testator. If there is a codicil including them as a beneficiary, that entitlement is not affected by them having witnessed the will.

Whilst a witness to the will could exert undue influence over the terms of any subsequent codicil, it is for anyone seeking to exclude that witness from benefiting to establish they had exercised undue influence, which is a high barrier to cross.

I am inclined to the view that the letter of wishes should be treated similarly to a codicil in this instance, and it is for the trustees to exercise their discretion as to whether or not to add her as an object of the trust having considered the relevant circumstances.

If, during the testator’s lifetime, the housekeeper can be shown to have had an overbearing personality, this might be significant, but would be but one factor to inform the trustees’ decision.

Paul Saunders

(Simon Leney) #3

S 15 of the Wills Act says "any beneficial devise, legacy, estate, interest, gift, or appointment, of or affecting any real or personal estate (other than and except charges and directions for the payment of any debt or debts), [shall be] thereby given or made, such devise, legacy, estate, interest, gift, or appointment [to a witness or their spouse] shall … be utterly null and void.
I don’t think the situation described is caught - the legacy in the Will is to trustees and if they have a discretion there is no “entitlement” on the part of the housekeeper. I don’t even think it would matter if the housekeeper had been named in the Will as one of the objects of the discretion, though I think it would be different if the Will had given a direct interest. Admittedly the word “appointment” in the section might at first sight be relevant but that is referring to an appointment by Will, not by trustees.

Simon Leney
Cripps LLP