“What we’ve got here is failure to communicate” is a good quotation from the 1967 film Cool Hand Luke, but unfortunately, where a Will is ambiguous or where it is in part silent, a person’s executors cannot just declare this and instead they must make an application to the Court for the formal construction or interpretation of a Will. Violet Hamblen-Thomas died, leaving a Will she made in 1968, containing some confusing wording. She left her residuary estate (that is her remaining assets after the deduction of any debts, liabilities and testamentary expenses) for her son Edwin with the wording:
“In the event of my said son [Edwin] dying without leaving children as aforesaid my Trustees shall hold my estate… on Trust for the said Enid Simpson absolutely but should she predecease me then on Trust for the said Victoria [Simpson] absolutely”.
Violet died in 1973, Enid died in 1998, and Edwin died in 2014 without leaving any children. Victoria survived all of them. Because of the way the Will was worded, as Enid Simpson did not die before Violet, the executors’ viewed that next gift, to Mrs Simpson’s daughter Victoria, also failed. This was because the gift to Enid was merely contingent and had not vested in her before Edwin died.
However, Victoria challenged the executors’ interpretation of the Will. Victoria argued that the gift to her mother in Violet’s Will had not failed as a matter of construction of the Will. Ultimately, she would be the beneficiary of Violet’s estate if this outlook were applied.
The High Court considered this case, deciding that Violet intended the gift to Enid to take effect in the order of events that actually happened, in that Enid died before Edwin (rather than following the ambiguous wording of the Will which would indicate that Edwin had to die before Enid for the gift to pass). It was therefore decided that Victoria received the estate in full.
We ensure that Wills are drafted here without this level of ambiguity, and particular wording is used in order to avoid this type of tricky situation arising. People attempt to draft their Wills themselves or not using non-lawyer draftsmen in relation to creating their Wills without realising the issues that can arise. There are a number of problems with not receiving legal advice when it comes to drafting your Will, and mistakes like this can easily happen. While some may consider “what they won’t know as they won’t be here anymore” it is your loved ones, and your intended beneficiaries, who would have to deal with this type of protracted action regarding your Will if it was uncertain. We at Hay & Kilner LLP can help you with making a Will that brings you peace of mind that your affairs are fully in order.
For more information on any of the above, or how we can help you, please contact Elizabeth Gibbison, or call 0191 232 8345.