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The potential consequences of a poorly drafted Will17th December 2020 Wills, Trusts & Estate Planning
An illustrative case – Wales v Dixon & Ors 
A High Court judgment was handed down this summer in a case that illustrates the importance of instructing experts to draft your Will, and the potential consequences of having a poorly drafted Will.
Peter Wales instructed a well-known will-writing service to draft his Will, which dealt with his £600,000 estate. The Will was executed in 2008 and was retained at the Will writer’s office until Mr Wales’ death in 2015. When Mr Wales’ executors came to look at the Will, they encountered a problem with its wording.
The problem: how can a Will with vague language be interpreted?
In his Will, Mr Wales had left his estate in equal shares to “such all of my nephew’s and niece’s children”. However, there was no definition of which specific nieces or nephews he intended to benefit, or how he was defining ‘nieces’ or ‘nephews’ for the purposes of his Will.
In law, the words ‘niece’ and ‘nephew’ can be broadly defined. These words can refer to the children of one’s siblings (so-called ‘blood’ relatives), but also, the children of a spouse’s siblings (so-called ‘marital’ relatives).
This became a problem for Mr Wales’ executors as he had 7 nieces and nephews as ‘blood’ relatives, and a further 8 nieces and nephews through his deceased wife, as ‘marital’ relatives. Mr Wales’ executors were not able to determine whether the estate was to be split 7 ways (to his ‘blood’ relatives only) or 15 ways (to include the ‘marital’ relatives).
What are the consequences of ambiguity within a Will?
The executors had no option but to apply to court seeking a declaration as to the construction of the Will.
Ultimately, due to a lack of clear intention expressed anywhere in the Will and with contrary witness evidence as to intention from each side, the Judge ordered that the estate be split 15 ways rather than 7.
The Judge criticised the will-writer, stating that “the manner in which the Deceased’s instructions were taken for the Will greatly increases the likelihood that the Deceased’s intention with regard to residue was not understood.”
It was ordered that all costs should be deducted from the estate. This was because the dispute arose entirely out of the insufficient wording of the Will and unfortunately, the estate was penalised as a result. The costs came to over £100,000 in total.
This case is an uncommon example of the court using its power to order costs from the estate (as opposed to from the losing party) and highlights the lengths that executors may have to go to in order to avoid personal liability to beneficiaries where questions of law arise over the distribution of the estate.
This case is particularly unfortunate as it was an entirely avoidable dispute. Mr Wales’ family could have been prevented from having to embark upon the litigation process, and his estate could have been saved from bearing the cost, had the Will been properly drafted.
How can we help at JMW?
As specialists, we will meet with you in order to ascertain exactly what your wishes and intentions are regarding the distribution your estate and then we will advise upon the best way to achieve this. It can sometimes be more expensive to instruct specialist solicitors to act on your behalf, but as Mr Wales’ case illustrates, it is worthwhile if costly and stressful litigation can be avoided.
If you would like to speak to a solicitor to discuss making your Will, please call us on 0345 241 5305. Alternatively, please complete our online enquiry form and we will contact you.