Courts say “We Will Ignore Your Will”. Bit Of A Surprise!

Making A Will – It’s Now Pointless? New Court Decision raises the Question – Is There Any Point Even Bothering To Make a Will!

Wills are in the News again. I hope I have persuaded you in my previous Blogs, of the wisdom of making your Will, and also the wisdom of thinking very hard before you do so.

I strongly advise that professional guidance is necessary. I don’t know why it is, but everyone seems to think that they can write their own Will and not make a hideous horlicks of the job. And yet, in now over 40 years in the legal profession, I have never yet seen a homemade Will which fully reflected the maker’s intentions AND was properly executed as required by the Law.

How difficult it is, for a Will to be signed properly. The Maker – A- needs to find two witnesses who are not his relatives and certainly not people who are intended to benefit under the Will and also who are not appointed as the Trustees of the Will. W1 and W2. Nor Married to them.

A and W1 and W2 need to be together in the same space, each in line of sight of the other two. Whilst W1 and W2 need to know that the paper is a Will, it is not necessary for them to read it.

A signs it. W1 and W2 watch this

A stays in the room watching W1 sign it. W2 watches this

A and W1 stay in the room watching W2 signing this.

Easy Peasy. And yet….

If I had a pound for every time a client brings me a Will, or any document requiring multi witnesses, which he has already signed, or which a “Witness” has already signed, but he hasn’t – “Well my friend agreed to witness it, but he can’t come to the office, so he signed it last night” then I would be writing my blogs purely for fun. [I do anyway]

What is it about the word “Witness”? I think it has lost its meaning. It used to mean “see something happen” Now it seems to mean “sign your name”. Really?

And if it is not properly signed and witnessed then it is not a Will. Simple as that.

But the fun really begins when a home-made Will has been correctly executed. Because then, nonsense or not, it is an actual legally enforceable Will.

And as I have said, home-made Wills are nearly always drawn up in words which mean either nothing at all, or something other than what was intended,

There is something about drawing up a legal document which makes folk use language they never use in everyday speech and which they do not really understand. Instead of using language which is simple English – say “When I die, I want all of my belongings to pass to my spouse if I die first” they tend to come up with something which seems to the writer somehow more “legal”.

I have seen one recently where both husband and wife wrote in their similar Wills:-
“I bequeath unto my spouse my share in our house, its contents, all assets and money in accounts either in my name or joint names FOR HER/HIS LIFETIME. Upon the death of my spouse, I leave …….”.[various gifts to various people]

Now, the husband has died and his wife explains to me that what they thought they were doing was writing Wills by which each would leave their belongings absolutely to the other if first to die, but if the other had died first, then disposing of their belongings to other people.

To a Lawyer it is obvious that the wording of the Wills does not do this at all. It creates a Trust, where the surviving spouse gets the use of the belongings, for life, but has to preserve them so that the eventual beneficiaries will get them, under the Will of the first to die, after the second death. So she can only use the interest earned by the money. At a time when interest rates are so low that they hardly exist, the first to die has left the other, nothing at all.

Where did the phrase “for her lifetime” even come from? The surviving spouse, whose Will contains the same phrase, has no idea; she says they just thought it sounded official.

I am currently trying to assist a person whose godfather wrote him a substantial gift in his homemade Will. But the Will said – “if I die first everything goes to my wife”. [She died first] and it continued “But if my wife and I die together, then my Godson gets ….. etc.”

He certainly meant that  if he was the second to die then the Godson should inherit. But he wrote “if my wife and I die together”. Whatever that even means, – die in the same second?, die as a result of the same car crash albeit one of us survives a couple of weeks? Well it doesn’t matter what it means because it certainly wasn’t what he meant.

He in fact survived his wife for years and had told his Godson every time they met, all about the fact that he had left him a substantial inheritance in his Will. The Godson I fear will receive nothing. His Godfather did not “die together” with his wife and his Will said that the gift would be made only in that event.

Because it is the words of the Will that count, the meaning of the words. Not the intention of the Will maker who wrote those words. That must be the law and it always has been.

At least, that’s what we all thought until the recent case of Ilott v Mitson which is all over the newspapers at present. Link here This is a case where a woman made a Will faultlessly. It was professionally drawn up, properly signed and witnessed, and said clearly what the maker meant to say. And yet, the Courts have substantially set it aside.

This result is so surprising that the lawyer for the animal charities who benefited under the terms of the Will but have now been substantially disinherited said, “Many are wondering whether it is worth bothering to make a will at all, if it can be overturned after your death by a judge who does not agree with the choices you have made or who does not share your view that your child can be expected to fend for themselves once they reach adulthood, if they are not mentally or physically incapable of finding work.” Strong words indeed.

The case is that of a mother who, outraged that her daughter at age 17 had eloped to marry against the mother’s wishes, by her Will left all of her estate to animal charities.

She had no particular love of animals, in her lifetime.

The daughter, now 54, has persuaded the Courts that her mother’s decision was motivated by “unreasonable spite”, and the Courts have decided that £164,000.00 should pass to the daughter. Which means, that the animal charities will not receive that amount in spite of the fact that it was clearly left to them in a perfectly valid Will.

Ok, I never said the law was easy to understand, did I?

Some commentators have said that the law in England now would make the plot of King Lear a nonsense. Because it now seem you can’t disinherit your daughter. This of course is wrong, but maybe a little bit right?

Wrong, because King Lear gave away his estate when he was alive. So far there is no basis for a sane person to be denied the right to give away everything whilst alive – which does mean of course that there will be nothing left for a daughter after death of said sane person.

But really if the Courts are interfering to this extent, why should we be surprised to be told that the next thing is, you can’t give away anything, unless your children say it’s OK? And then King Lear won’t make much sense, will it.

My view is that this is a bad decision and may yet be overturned on further Appeal. It seems to be a move towards the French and Spanish Systems, where children MUST receive a share of parents’ estates. That is why there are so many tiny little farms in France – imagine a farmer with seven children, each getting a seventh of his farm. And each child having seven children. Before long, the next generation will each have a farm the size of a parking space!

It has never been the English way.

Sometimes the Law is an Ass. Back to Mr Bumble – how truthfully he spoke. link here

If you still think that there is any point in making a Will [and really in spite of this, there certainly is], do get in touch and I will recommend a suitable solicitor in England or abroad. And, of course, if you have documentation requiring notarization for any foreign country, then please get in touch with me or Louise. 0113 8160116, and notary@atkinsonnotary.com.

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