A reminder: the effects of the change in value of a testamentary gift

The High Court handed down a judgment in the case of Skillett v Skillett on 8 February 2022. The judgment was a reminder of the effects of leaving a bequest of a particular asset in your will, where that asset has the potential to change in value over time.

The facts of this particular case were that a testator prepared a will in 2011. The testator’s will left a smallholding to his son, who was the claimant in the case, and the sum of £50,000 each to his three remaining children. The testator had then left his residuary estate in four equal shares to his four children. When the will was drafted by the testator, the smallholding had a value of about £50,000. When the testator died in 2017, however, the smallholding had more than doubled in value to £110,000.

The defendant in this case was the testator’s other son, who was asking the court to find that the will was invalid. The son argued that the testator did not know and approve the contents of his will. The son stated that his father had not intended to distribute his estate with unequal values between his children and therefore could not have understood his will.

The judgment handed down by the court made the law in this particular area clear. The judgment found that a change in circumstances after the execution of a will, which includes asset values that have fluctuated over time, does not undermine the knowledge and approval that the testator had when executing their will. The judgment confirmed that this extended further to include unintended results which have occurred from a shift in circumstances. 

The details of this case act as not only a reminder but a warning to those preparing their will. A change in circumstances may occur in the period between executing your will and the date of your death, which could affect how your estate passes to your chosen beneficiaries.

There are, however, some helpful points to bear in mind when preparing your will which can help mitigate the issues the testator’s personal representatives and beneficiaries encountered in the above-mentioned case. These are as follows:

• The case of Skillett v Skillett highlights how specific bequests of assets in a will can have their dangers. A division of your residuary estate using percentages or fractions is a method that can safeguard against asset values changing over time.
• Keeping your will under review at regular intervals means that a change in circumstances, such as asset value fluctuations, can be addressed, and if relevant your will updated. We recommend clients review their wills every three to five, even if this just means locating your copy will and reviewing its contents to confirm it is up to date.
• Action can be taken during the lifetime of the testator if a change of circumstances has occurred during the testator’s lifetime and they do not have the capacity to update their will. A statutory will application can be made to the court in these circumstances and, if successful, the statutory will shall replace the testator’s former will.

Our wills, trusts and estates team is experienced in drafting and advising on complex will structures and would be happy to advise on any concerns raised in the case of Skillett v Skillett.