If you, like me, used some of the Christmas holiday period to catch up on a backlog of TV programmes, then you might have watched the BBC’s excellent production of E M Forster’s “Howards End”.  The story is set in Edwardian England and rooted in a property called the same name owned by a Ruth Wilcox.  Shortly before she died, Ruth made a note leaving the property to her new friend Margaret Schlegel rather than to her family as they expected.  The property was Ruth’s to gift as she wished but the note was written in pencil and was undated and unsigned.

After Ruth’s funeral, the note was read out to their adult children by her wealthy widower.  This led to a family discussion about: a valid Will already in existence which pre-dated the note considerably and was completely contrary to the note; whether the note was the result of undue influence over Ruth by Margaret; and whether Ruth lacked testamentary capacity when she prepared the note.

Margaret was not present during this discussion and was completely unaware of the gift.  With the family looking on, her widower burned the note so that the family could keep Howards End, leaving Margaret none the wiser.

Ultimately, there was poetic justice in that Mr Wilcox married Margaret and, when he fell on hard times, he told Margaret about the note but bequeathed the property to her so she inherited it anyway.  However, the issue here is one of concealment by the deceased’s family and not implementing the deceased’s wishes.

What would happen today?  Did this note amount to a Will?  Does it matter that it was a note rather than a Will?

At the time of the novel, the Wills Act 1837 applied as it still does today (although it is presently under review by the Law Commission in order to address changes in modern society such as increasing reliance on digital technology and whether electronic Wills should be permitted).

At present however, the Wills Act says no Will shall be valid unless it is in writing and signed by the testator in the presence of two or more witnesses who each attest and sign the Will.   Although the novel does not contain all the legal and factual details, it seems Ruth’s Will complied with the Act’s formalities whereas the handwritten note did not.

Where a dispute is anticipated about a Will (such as where it might exclude a relative who expected to inherit) or where it is considered helpful to set out a list of specific items to go to certain people mentioned in the Will, a separate letter or expression of wishes can be placed with the Will soon afterwards to explain the testator’s reasoning.  From the limited detail in the novel it seems this was not such a note as it was written years after the existing Will and Howards End was a major – possibly the major – asset in Ruth’s estate so it seems likely to have been an unsuccessful attempt to revoke the existing Will.

However, it was and is possible to make gifts made in anticipation of death.  These are called “donationes mortis causa” (DMC) which are also under consideration by the Law Commission.  These are gifts which the person (the donor) makes immediately before death. If effective these bypass the formalities set out in the Wills Act 1837 as the gifts do not pass to the executors/personal representatives on death but go to whoever the deceased intended to benefit.  Perhaps this is what Ruth Wilcox had in mind.

However, to be an effective DMC, Ruth had to believe she was going to die and make the gift conditional on her death occurring. In addition, the gift had to be capable of being parted with and actually given away or delivered.  Of course, land is not portable like a painting or a piece of jewellery.  Therefore, giving land away before a person dies is fraught with difficulty if the paperwork effecting transfer of ownership is not started and completed before death.

Ruth Wilcox was a wealthy and intelligent woman and the novel suggests her death was not sudden so she had time to prepare.  Perhaps, if she had told Margaret and her lawyer about the gift and attempted to deliver it before death by passing to Margaret the old deeds and all the keys to the property that would have assisted and then her family would have been bound to hold it on trust for Margaret until she became the legal owner on paper.  But then there would not be the story which is Howards End.

It is a scenario which can still happen today.  As a litigation solicitor, dealing with many contested probate claims, I do find it surprising that, when it comes to land and other valuable property, people can still leave such important decisions in handwritten notes or not leave any written instructions and Wills at all.  As with Ruth Wilcox, some people simply place their trust in family members to implement their verbal or handwritten wishes but when that is not done and deceptions discovered, there can be stressful and expensive litigation.

It is estimated that 40% of the adult population do not have a Will and, of those, many Wills are handwritten documents that do not meet the required formalities, also leading to litigation with which we become involved.

The moral of Howards End is to consult a solicitor about how to make gifts before death legally effective and to leave clear and unambiguous instructions in relation to all your wishes in a properly prepared and executed Will.  This is still the best way to record your intentions and will leave your executors with a clear understanding of how to implement your wishes when you die rather than being distracted by expensive and lengthy disputes.

Davina Haydon is a partner in Stephens Scown’s Inheritance and Trust Disputes Team and heads up the Dispute Resolution team in our St Austell office.  She is highly recommended by the Legal 500.  If you wish to contact her about hand written wills and documents or probate claims generally please call her on 01726 74433 or email her on drsa@stephens-scown.co.uk