Why a homemade will can fail

“We hold that the circumstances of this case are gravely suspicious and raise such a reasonable doubt.” ― Moore JA, King v Massiah (Court of Appeal of Barbados, 2014)

A will has one feature no other legal document shares. By the time anyone tests it, the only person who knows for certain what they meant is dead. Every question about the will, whether they understood it, whether someone leaned on them, whether that is even their signature, has to be answered by somebody else.

You can write your own will in Barbados. You can buy a form, fill it in at the dining table, and ask two neighbours to sign. Nothing in the law stops you. This article will not argue that you need an attorney for every will. It will argue that the homemade will is most exposed at the point where it matters most: when someone challenges it, and there is nobody left who can say how it was made.

The rules are short

To make a will you must be 18, or married, and of sound mind (Succession Act, Cap. 249, s. 60). Section 61 then requires the will to be in writing and signed at the foot or end by the person making it. The signature must be made or acknowledged in front of two or more witnesses present at the same time, and each witness must sign in that person’s presence. No special wording is needed.

Section 63 goes further. The witnessing rules in section 61 do not apply “to any will which is written throughout in the proper handwriting of the testator”. A will written entirely in your own hand can be valid with no witnesses at all.

There is one trap inside the rules. If a witness, or a witness’s husband or wife, is left anything in the will, that gift is void (s. 66). The will survives, but the witness loses the gift. It is an easy trap to fall into, because the people nearest at hand when a will is signed are often the people named in it.

Where the fight actually happens

In the Barbados cases below, the formalities were not what the parties fought about. They fought about proof. Once a will is challenged, the person relying on it has to prove it. Where the circumstances “raise the suspicion of the Court”, the will “ought not to be pronounced unless the party propounding it adduces evidence which removes such suspicion” (Brooker v Brooker, High Court, 2020, para. [82]). Each case below carries a lesson you can use.

When the beneficiary is too close to the will. In King v Massiah (Court of Appeal, 2014), an elderly blind retired teacher left almost everything to two lodgers who were not related to her. One of them “had transmitted the instructions for the making of the will to the attorney-at-law who drew it and … was also present at its execution” (para. [27]). The Probate Rules require an affidavit that a blind testator’s will was read over to them before they signed (r. 15), and the Court of Appeal found that rule 15 “had not been complied with” (para. [28]). It pronounced against the will and allowed her brother’s claim for letters of administration instead (paras. [33]–[34]).

The lesson: anyone who stands to benefit should stay out of the instructions and out of the room. This will failed because of who had handled it and how it was signed.

When capacity is questioned after death. In Elcock v Elcock (High Court, 2013), a 74-year-old mother made a second will six months after her first. The first left everything to her son. The second split the estate among all three children. The son challenged it, alleging “senile dementia and diabetes” (para. [7]). The will survived because the attorney who drafted it could say that the mother had come to her with instructions, confirmed the draft and signed in front of the attorney and her secretary (paras. [18]–[19]). No doctor had examined the mother at the time, and the court said it “would certainly have been desirable” for one to be present (para. [96]). The attorney’s evidence dispelled the suspicion (para. [97]), but the claim was filed in 2003 and judgment came in 2013.

The lesson: the evidence that saves a will is created on the day it is signed. Nobody can create it afterwards.

When the will says the wrong thing. In Bellamy v Jones (High Court, 2014), a man left his grandson his “stone dwellinghouse situate at Applegrove, Black Rock” (para. [70]). He owned no house there. The house he did own was at Skeete’s Road, Bank Hall (paras. [68], [83]). The court saved the gift (para. [83]), but only after litigation that ended eighteen years after his death.

The lesson: describe property the way the title deed does.

When the signature itself is attacked. In Brooker, a son said his father’s signature on a will dated 1^st December 2003 was not his father’s (paras. [3], [9]). The suit was filed in 2006 and decided in 2020. The will was upheld on the evidence of the attorney and his secretary, who had both been present when it was signed, together with a handwriting expert whose evidence the court preferred (paras. [28], [30], [124], [133]).

The lesson: choose witnesses who are independent of the family and who can still be found, and still remember the day, years later.

If you are older, get the doctor involved

If you are past 80, or there are signs of a mental illness or of your memory and understanding slipping, assume that someone may one day say you did not understand what you signed. In Elcock, the court accepted that “given the age and physical condition of the Testatrix, it would certainly have been desirable, as recommended by the Court in Re Simpson … for a medical doctor to be present” when she signed (para. [96]). The medical expert called to challenge the will had never examined her at all (para. [39]).

In practice, that means:

• have your doctor assess your capacity on the day you sign, or as close to it as possible,
• if you can, have the doctor act as one of the two witnesses,
• ask the doctor for a short, signed and dated written report of the assessment,
• do not staple, pin or clip the report to the will. Keep it in the same sealed envelope as the original will, or on the same file, and write on the envelope, or in a letter to your executor, that the report is there, and
• if a report has already been fastened to a will, leave it attached. Removing it later leaves marks on the will that can raise questions at probate.

A doctor’s note from months earlier helps less than you would think. The question is always whether you understood the will at the moment you signed it.

Conclusion

To be clear, I am not saying every homemade will is doomed. A homemade will that nobody challenges may pass through probate without a murmur. My point is that the cost of getting it wrong is not paid by the person who made the will. It is paid by the family they meant to protect, in court, sometimes for more than a decade. That is a bill worth avoiding.

If you are going to do it yourself

• Describe property the way the title deed describes it, not by a nickname or a neighbourhood.
• Never let a beneficiary, or a beneficiary’s husband or wife, act as a witness.
• Keep beneficiaries out of the instructions and out of the room when you sign.
• If you are past 80, or there are signs of a mental illness, involve your doctor as described above.
• If you are blind or will sign with a mark, the will must be read over to you, and a witness will need to swear to that.
• Tell your executor where the original is kept.

― Javed E. Daniel (LL.B) (LEC)

Authorities

• Succession Act, Cap. 249, ss. 60, 61, 63, 66 — Barbados Judicial System
• Supreme Court of Judicature (Non-Contentious) Probate Rules 1959, r. 15 — Barbados Judicial System
• King v Massiah, Civil Appeal No. 4 of 2010 (Court of Appeal, 9^th May 2014) — judgment
• Brooker v Brooker, No. 1529 of 2006 (Reifer J, 26^th November 2020) — judgment
• Elcock v Elcock, No. 1914 of 2003 (Cornelius J, 12^th June 2013) — judgment
• Bellamy v Jones, No. 188 of 2011 (Chandler J, 16^th October 2014) — judgment