Home > Cases > Organ and another v McKechie and others


Organ and another v McKechie and others

[2008] All ER (D) 329 (Feb)

Court: High Court
Date of Judgment: 22.02.08
Ruth Jordan

The deceased testatrix had three sons and one daughter. The claimants were two of her sons. The first defendant was her daughter and the second defendant her remaining son. On 6 February 2002, the testatrix had a meeting with P, the managing director of a company (CLG) providing will drafting services, with a view to having a will drawn. CLG's operation involved the completion of a standard form questionnaire. The information given was then entered into a computer employing software which produced a will corresponding to the answers given in the questionnaire. During the meeting, G recorded the testatrix's answers to the questionnaire. Although G himself was not a qualified lawyer, the testatrix was given advice to the effect that the creation of a nil-band discretionary trust held potential benefits for the purposes of inheritance tax. Subsequently, the testatrix was sent a draft will. It was common ground that that will was never executed. Between 27 February and 11 March 2002, CLG received a letter, written by the first defendant purportedly at the request of the testatrix, and purportedly signed by the latter, which changed the terms of the draft will. A second will, reflecting the terms of that letter, was subsequently executed. The effect of that will was effectively to disinherit the claimants save for the provision of fixed pecuniary legacies. The will contained clauses relating to the intended discretionary trust. However, the manner in which those clauses were drafted was such that no such trust could properly take effect. In any event, the trust would not have conferred the intended tax benefit. The defendants were appointed executors of the will. The testatrix died on 20 March 2003. Subsequently, the claimants issued proceedings alleging that the will was invalid for want of knowledge and approval on the part of the testatrix and alleging that the testator’s signature on the letter changing the direction of the will had been forged. Alternatively, they sought rectification of the clauses pertaining to the creation of the discretionary trust, thereby giving them a beneficial entitlement to the residuary estate.

Two principal issues fell to be determined, namely: (i) whether the signature, purporting to be that of the testatrix, on the letter of instruction, had been forged; and (ii) whether the failure of the discretionary trust had resulted in the will failing to reflect the testamentary wishes of the testatrix.
The claim was dismissed. Held by HHJ Pelling QC that on the evidence, the claimants had failed to establish to the required standard of proof that the signature on the letter purportedly stating the testatrix's testamentary wishes had been forged. Furthermore, the purpose of the discretionary trust had been to obtain potential tax benefits, not to enable the claimants to take a beneficial interest in the residual estate.The clauses dealing with the creation of the trust had been drafted in such a way so as to fail. However the hoped-for tax advantages had not in fact been available. In those circumstances it could not be said that the will had failed properly to reflect the testamentary wishes of the testatrix, nor that the will had been executed with want of knowledge and approval on her part.

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