Do DIY wills mean inevitable legal battles ahead?
The High Court heard a case that exemplified what can go wrong when wills are not drafted by professionals. Indeed, the ambiguity left in the wake of such DIY wills can leave the executor unable to distribute the deceased’s estate safely.
Background:
Veronica (or Vera) Clarke passed away on 11 August 2022. Her nephew, Henry Tedford, was granted probate of her last will, dated 20 October 2014, on 30 March 2023, with the powers reversed for another executor, namely her brother. The will contains several ambiguities that require court interpretation. Henry Tedford, as executor, initiated these proceedings to resolve these issues, as he couldn't safely distribute the estate without a court order.
The will mentioned that her estate was to be divided in equal parts between her late husband's surviving brothers and sisters in equal shares, with a provision for their children if they predecease Vera, as well as her own surviving brothers and sisters in equal shares (with the same provision for their children).
As Judge Cadwallader noted, “The family tree is complex and, unfortunately, no graphical representation of it was made available.” Veronica Clarke was married to Albert Clarke, who predeceased her, and had no children. She had six siblings, of whom only two survived her, and several deceased siblings who had children. Her husband had nine siblings, some of whom had died before Vera, but it's unknown if they had children.
Vera's estate included a house sold for £147,592 and several Santander bank accounts amounting to £321,602.15. At the time the will was written, her investment accounts were held with Abbey National, which was later renamed Santander.
Separately, Vera's brother, William Morris, and sister, Leila English, have filed a claim to remove Henry Tedford as executor.
Decision:
His Honour Judge Cadwallader described the will as being ‘badly drafted’. He started by noting that the fundamental rule is to determine the testator's intention based on the words used in the will (Sammut v Manzi [2008]), read as a whole and in light of any admissible extrinsic evidence (Sherratt v Mountford (1873)). The Court reminded us that it was noted that formatting by word processors might not be significant, as it “may well have been operated by a secretary”.
Section 21 of the Administration of Justice Act (ADA) 1982 allows for the admission of extrinsic evidence, including evidence of the testator's intention, if any part of the will is meaningless, ambiguous on its face, or else ambiguous in light of surrounding circumstances. The Court noted “the starting point is the wording of the will itself, it is only if there is some uncertainty or ambiguity in the will that it is necessary to have recourse to extrinsic evidence: Hodgson v Clare [1999].” However, the Court cannot rewrite the will or engage in guesswork to determine the testator's intention.
Here, the clause mentioning the surviving brothers and sisters should be understood “at the date of death of the deceased, since wills speak from death.” The Court interpreted the "50% of my estate" as shares of the residue of the estate.
Implications:
This case provides a good reminder that, while DIY wills might appear convenient and are budget-friendly, they might lack the necessary legal accuracy, which can lead to complications and costs. The Court warned of the perils associated with the engagement of unqualified will writers. Although some might ask how this could be their problem, as they will not be there to take part in those legal proceedings, the answer is that the outcome might not be the one you were intending. While courts will do their best to uphold the intentions of the deceased, they might not ascertain it as you would have wished.
This decision also highlights the importance of using clear and unambiguous language within a will. For instance, in this case, the Will mentioned a savings account in the singular while the deceased had several accounts. The Court interpreted this clause as referring to all the savings accounts. The time of this Court's interpretation could have been saved by a more careful drafting.
Finally, periodic review and amendment of a will is important. In this case, the outdated reference to "Abbey National Bank" instead of "Santander" could have been corrected in time, avoiding the intervention of the courts.