Don’t make a Will Thoughtlessly. Think Once, Think Twice.

Don’t make a Will Thoughtlessly. Think Once, Think Twice.

There seems to have been quite an unusual level of press reporting in the past couple of months about Wills and the problems that can arise by not making them. Last week I commented upon the real difficulty that can arise when a person hopes that their “deathbed wishes” will be binding as if they had made a Will. Bit of a forlorn hope, these days.

But then this week, two cases in the press about problems which have arisen even though Wills HAVE been made. Seems you just can’t win.

Case 1 – “Retired civil servant, 82, faces ruin and homelessness after being cut out of wife’s will.” Link here

Case 2 – “How a £90 will by Barclays lost half my house.” Link here

Both are cases where the Will maker had a child by a previous marriage; both are cases where that Will maker owned a house jointly with their present spouse and wanted to leave their own half of the house to that child.

Both in my opinion are Wills which should never have been made. Necessarily if you leave your house-share to a child, you deprive your Spouse of ownership of that half after you die. So where will that Spouse live? Doesn’t matter if you have several houses or millions in the Bank I suppose, but otherwise?

I am often amazed by how often people do not consider the simple meaning of the words in their Wills.

In the first case, Mrs Henein made a Will, seven days before her death. In respect of the house she owned with her husband, she left her share to her son (her husband’s stepson). Because the house had been owned jointly, she also prepared a Notice of Severance of joint tenancy. This converted the “joint tenancy” into a “tenancy in common” enabling her to leave her share of the house value to her son even though she died before her husband.

Her gift of the house was ”Successful”, in the sense that her share is now owned by the son. Is that really what she wanted?

In every case like this there is room to speculate.

Mr Henein told the court that he believes his wife was in no mental state to make a Will and that the stepson was the “driving force” behind the making of the new will, the terms of which were so very much in his favour. Mr Henein lost his case.

Now Mr Henein has to raise not only the court and legal costs but also enough money to buy his wife’s half share of the house from his stepson if he wants to stay living there. He hasn’t got that sort of money. Now in his eighties, he faces homelessness.

The second case looks just the same from the headline. ‘How a £90 will by Barclays lost half my house’

Just like Mr Henein the Plaintiff is complaining that a Will has wrongly cost her a half share of a house. The twist here is that it is the child who has “lost out”.

According to the Daily Telegraph, Court documents detail how in 2007 Ebenezer Aregbesola used Barclays’ £90 will-writing service to create a will dealing with his various assets including homes overseas and in London. His will instructed half of the London home to be given to his daughter, Tinuola Aregbesola, on his death.

The property was owned jointly by Mr Aregbesola and his wife – who was not Tinuola’s mother. Because of the joint ownership, on Mr Aregbesola’s death in early 2014, the property went wholly to his wife – in contravention of the wishes spelt out in the will.

This is because no-one owns a house which is “jointly owned”. So, just as Mrs Henein did, Mr Aregbesola should have severed the joint tenancy in order for his Will to work.

The Daughter is suing Barclays saying that its failure to advise the severance has cost her “Hundreds of thousands of pounds”.

I have nothing to comment about Barclays alleged behaviour.I wasn’t present when Mr Aregbesola gave his instructions. Maybe the Bank told him all about the need for severance, and he instructed there should be none. [That would enable him to tell his daughter he had “left the house to her” and stopped her nagging. It’s possible – I don’t have a clue.]

Or maybe Barclays did make a basic mistake which would not have been made by any young law student however stupid but D’ohh, surely none of my readers would use a Bank to write a Will for them in the first place so that doesn’t matter. You’re not idiots, I know.

What I am thinking is, that if the daughter has not got the house share, then the “mistake” has meant that the surviving spouse has not lost “hundreds of thousands of pounds”, as he ostensibly intended. Unlike Mr Henein, she now owns the house and is not made homeless.

Whilst the newspapers say that the second case highlights “the danger of popular, cheap wills which are often too simplistic to reflect accurately their owner’s wishes,” my view is that the real danger is that the Willmakers’ wishes are often not even clear in the mind of the Willmakers.

Time and again I have heard a client say either, “I want to protect my child and make sure that my share of house doesn’t all go to my new [second] spouse”. Or it might be, “I want to protect my second spouse and make sure my children don’t take the house off him/her when I go”.

And the measures which I am asked to write into the Will are completely thoughtless of the consequences so far as the disinherited party is concerned.

I guess there could be many clients in second marriages, like Mrs Henein, who might instruct lawyers to draw up a Will to “look after my son and leave him my share of the house”

How often, once the Will is drawn and approved, does the advising lawyer paint the real, complete, picture to the client, saying – “Look what you are doing here – Your husband aged 82 might now have to go and live in a hostel if you die first, is that what you want?”

I have a feeling that some, perhaps particularly the elderly, Willmakers enjoy a feeling of almost dreamlike power, when they write a Will. Dispensing largesse here and there, “looking after people”. Similar to the fancies we all have – What would I do if I won the Lottery – I’d give you a million and buy Jack a new ….

Wills can cause problems, no doubt of it.

I still think they are fewer than the problems which arise from making no Will.

But still, a perfect Will – just the same as a badly drawn Will, – and just the same as a thoughtless Will, – and just the same as a Will made in ignorance of the meaning of “joint” ownership – they all have one dreadful fact in common. Once the maker of it has died, a Will has fixed legal consequences which impact hugely on the lives of the survivors.

Only the person who has died will know whether those consequences were really understood and really intended. And he is not saying.

Please do get in touch with Louise and me, whenever we can assist. As always, its 0113 816 0116 or notary@atkinsonnotary.com

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