Points On Which You Should Take Special Care When Drafting Your Will
Gordon Bowley has practised as a family solicitor for over thirty years. This is his second book aimed at helping lay-people reduce or avoid entirely the exorbitant cost of consulting a solicitor.
BE PRECISE AND SAY WHAT YOU MEAN
Do not use phrases such as ‘I hope that’, ‘I trust that’, or ‘I request’; be definite if you intend your wishes to be carried out.
Be precise and avoid vague wording which will make gifts fail to take effect by reason of a lack of certainty. It is much safer to take care and state your intentions unambiguously rather than rely upon someone attempting to guess them. The devil himself knoweth not the mind of man - or of woman either if it comes to that!
The courts will lean over backwards to give effect to your intentions but they will not make your will for you. Courts have very limited powers to look beyond the wording of your will to ascertain your intention. They are only permitted to do so if the wording of the will is meaningless or shown to be ambiguous on the face of the will or in the light of surrounding circumstances. If this is not so and the wording of your will appears to show your intentions clearly, the courts have no power to hear evidence as to what you actually intended and must give effect to your wishes as expressed in your will, even though external evidence would have shown that the wording of your will did not express your wishes correctly.
If your intention in any part of your will is not clear after taking into account any external evidence it is permitted to consider, a court must ignore that part of the will and it will not take effect.
You must therefore make your meaning absolutely clear and unambiguous at all times. It is so easy to think, incorrectly, that because you know what you mean, that is what you have written and it is a good idea to have someone read over your will for you to see if they are clear about what you intend and to check that what they think you intend is in fact what you intend. If you do not make it clear what you intend to give and who you intend shall benefit from the gift, the gift may well fail to take effect completely by reason of uncertainty.
If a court is satisfied, after considering the evidence it is permitted to consider, that the wording of your will does not carry out your intentions because of a clerical error or the failure of the draftsman (if it was prepared for you by someone else) to understand the intentions, it can rectify your will so as to carry out your intentions. Although a court can interpret the meaning of the words of your will, it cannot rectify the wording of your will for any other reason.
A striking example of the lengths to which a court will go to use its power to rectify a will to achieve a testator’s intention is the case of Vautier’s Estate. The facts were that a husband and wife signed each other’s wills by mistake, the wills having been prepared in reciprocal terms. The mistake did not come to light until after the wife’s death. The court decided that the will she had not signed could not be proved as her will, because she had not signed it and completed it in accordance with the required formalities. However, the will she had signed would be rectified to carry out her perceived intention and was allowed to be proved as her will after the wording had been amended. Although this was a Jersey case it is thought that the result would be the same in England or Wales.
Describe beneficiaries by their full correct names rather than merely using their relationship to you, and give their addresses. This will be of assistance to your executors, not only in identifying the beneficiaries, but also in tracing them. If this is not possible because you intend to benefit a fluctuating group of people identified by description, such as your nephews, specify a cut-off date. Take care to say whether you intend to include only members of that group who are living at the date of your will or also those born after the date of your will and before your death. Any person conceived but not born at the date of your death is considered to be living. If you wish to include members of a group who are born after your death, remember that it will not be possible to distribute your bequest until it is no longer possible for anyone else to join the group covered by the description.
Remember also the complicated rules of the Perpetuity and Accumulations Act 1964 (dealt with in more detail later in this chapter) and that in case the Act should invalidate the bequest, it is safer not to make any gift by your will in respect of which gift all the beneficiaries will not have been ascertained and qualified for their share of the bequest within 21 years of your death.
If you leave a bequest to relatives by the description of their relationship to you, such as nieces, nephews, uncles or aunts, make it clear whether you intend to include only blood relatives or whether you intend to include relatives by marriage, (e.g. the daughters of your wife’s sister as your nieces) and by civil partnership registration.
Remember that the Gender Recognition Act 2004 means that a change of gender will be recognised in respect of wills made after, but not wills made before, the Act came into force if a Gender Recognition Certificate has been issued; a bequest to your nieces, for example will therefore be considered to include someone who was born as your nephew and has obtained a certificate. It is true that a court has power under the Act to make such order as it considers to be appropriate and just but it is safer to name the beneficiaries if possible rather to rely upon a court correctly guessing your intentions.
A gift to your ‘issue’ or ‘descendants’ will mean that each of such people who are living at the date of your death will inherit an equal share. If this is not what you intend and your intention is that any such person shall inherit only if their ancestors who are your descendants have all died before you, make your gift to your ‘descendants per stirpes’. (Please refer to the explanations of ‘Gifts per stirpes’ and ‘Gifts per capita’ in the glossary.)
A gift to your children will be taken to include your adopted and your illegitimate children (if any), but not your stepchildren unless you indicate in your will that that is not your intention or you have no other children at the date of the will, but any person who has been treated as a child of your family in respect of your marriage, your former marriage or registered civil partnership will have a right to make a claim for reasonable provision from your estate under the Inheritance (Provision for Family and Dependants) Act 1975, as amended.
The words ‘relations’ or ‘next of kin’ will usually be taken to mean those who will inherit your estate if you die intestate. (Please refer to Chapter 1.)
There is no provision in the Civil Partnership Act for the word ‘spouse’ to include ‘Civil Partner’ and accordingly ‘spouse’ in a will will not be read as ‘Civil Partner’.
Do not use nicknames. A bequest to ‘mother’ led to litigation where a testator was in the habit of calling his wife ‘mother’ and both the wife and natural mother were living at his death.
If you make a gift to charity, identify it by its exact name and registered number and say that the gift is made for its charitable purposes. In a case in which the charity was in the course of liquidation at the date of the testator’s death and the will did not say that the gift is made for its charitable purposes, the court decided that the gift took effect for the benefit of the charity’s creditors and did not have the benefit of inheritance tax relief because the creditors were not a charitable purpose.
The registered number of a charity can be obtained directly from the charity or from the Charity Commission. Direct to PO Box 1277, Liverpool L69 3UG. Telephone: 0845 3000 218. Website: www.charity-commission.gov.uk.
To understand what will happen to any bequest to a beneficiary who dies before you or a bequest which fails to take effect for any other reason, if you have made no alternative provision in your will, please refer to the section in Chapter 6 headed Alternative provisions for bequests to beneficiaries who predecease you and for bequests that fail’.
In the same way as it is necessary to be precise when describing beneficiaries it is necessary to avoid uncertainty when describing what you intend to give.
Do not use vague phrases such as ‘a substantial legacy’, ‘fair recompense’, ‘some of my’.
If you have several items that fit a description, e.g. several tea services, do not say merely ‘my tea service’; rather particularise the item further by saying, for example, ‘my Royal Doulton carnation patterned tea service’.
It is not a good idea to include a large number of bequests of individual items in your will: you might not own them at your death and your beneficiaries might feel embarrassed to decline or discard them but not really want them. If you give a legacy of, say, a car, make it clear as to whether the legacy refers to the car you own now or to any car you might own at the date of your death.
Similarly it is not a good idea to leave a particular bank or building society account or the money in such an account as a bequest; the balance in the account at any particular time will vary and when you die at some (hopefully) long time in the future, the account might have been closed.
Describe property by its postal address ‘and the land and premises occupied therewith’.
Make it clear whether any bequest you make is given ‘subject to tax’, in which case the beneficiary bears any inheritance tax payable in respect of it, or ‘free of tax’, in which case the tax is payable by your residuary estate unless the residuary estate is left to an exempt beneficiary. In the absence of any provision to the contrary in your will, tax in respect of joint or foreign property will be borne by the beneficiary, but tax in respect of other property left by your will will be borne by your residuary estate, again unless the residuary estate is left to an exempt beneficiary.
If you wish to leave a bequest to your executor or to someone who is a trustee under your will for their own benefit, state that the bequest is given to them ‘absolutely’.
A bequest of something which you do not own at the date of your death will not take effect except in the special circumstances of the doctrine of election discussed in Chapter 3 under the heading ‘Other property you do not own over which you have no power of appointment’.
Bequeathing something by your will does not prevent you from subsequently disposing of it later in your lifetime to the beneficiary or to any other person.
LEGACIES TO THOSE WHO OWE YOU MONEY AND TO THOSE TO WHOM YOU OWE MONEY
If you leave a bequest to someone who owes you money, make it clear in your will as to whether you intend that the legacy shall be paid and the debt forgiven or whether the debt shall be deducted from the legacy.
If you leave a legacy to a creditor, make it clear whether you intend the legacy to be in substitution for or in addition to the debt.
THE MEANING OF SOME WORDS AND PHRASES
Do not attempt to use technical terms in your will if ordinary words will do.
In order to achieve your intentions as expressed in your will, the courts will take a practical and common sense view in giving effect to your intentions and interpret words according to the context in which you use them, but it can be useful to know how they have been interpreted in the past.
The words ‘family’ and ‘my relations’ have been variously interpreted and if possible it is better not to use these words.
‘Next of kin’: the phrase ‘next of kin’ is interpreted in accordance with the order set out for inheritance on intestacy (see Chapter 1).
‘My money’ has been variously interpreted according to its context in the will as a whole and might be taken as referring only to cash, or on the other hand to include bank accounts or investments: it is better not to use the term without further amplification.
‘My personal estate’, ‘my personal effects’, ‘my goods and chattels’ or ‘my belongings’ are usually taken to include all your moveable items, but not your freehold or leasehold property. However, ‘my estate’ or ‘my possessions’ is usually construed as meaning all your assets including non-moveable property.
‘Personal’ estate or ‘personal’ chattels will not usually be construed to include items used for business purposes.
A useful and comprehensive, if somewhat dated, definition of personal chattels can be found in section 55 (1) (x) of the Administration of Estates Act 1925:
‘Personal chattels’ mean carriages, horses, stable furniture and effects (not used for business purposes), motor cars and accessories (not used for business purposes), garden effects, domestic animals, plate, plated articles, linen, china, glass, books, pictures, prints, furniture, jewellery, articles of household or personal use or ornament, musical and scientific instruments and apparatus, wines, liquors and consumable stores, but do not include any chattels used at the death… for business purposes nor money or securities for money.
Note that the definition includes pets for which you may wish to make separate alternative provision in your will.
This definition can be incorporated in your will if you wish by providing ‘I bequeath my personal chattels as defined by section 55(l)(x) of the Administration of Estates Act 1925 to …’.
If you wish to amend and update it to include, for example electronic equipment and/or boats, or to exclude any items, it can be amended and then copied in full into the will.
‘Furniture’ said Lord Justice Stamp in the case of Crispin’s Will Trusts, Re Arkwright v Thurley means ‘something which contributed to the use of, enjoyment or convenience of the house’
‘Jewellery’ includes unmounted precious stones but ‘personal jewellery’ is jewellery which is mounted ready to be worn personally.
After a change of gender has taken place and a Gender Recognition Certificate has been issued under the Gender Recognition Act of 2004 it will be recognised in relation to wills made after the Act so that your transsexual brother will usually inherit under a gift to ‘my sisters’. However under section 18 of the Act a court has power to make such order as it considers appropriate and just in the case of a person benefiting from a disposition of property as a result of the Act.
‘Month’ means calendar month unless lunar month or four weeks is specifically stated.
‘From’ a date does not include the date.
However, I repeat that the meaning of the words you use will always be decided according to the context in which they are used looking at the will and your individual way of life as a whole. An example is that a stamp collection acquired by a testator as his main hobby was held by a court to be an article ‘of personal use’ but if it had been acquired purely as an investment it would have been considered to be a business asset.
VOID PROVISIONS IN WILLS
Earlier in this chapter I explained that an attempted bequest will fail if the subject of the bequest or the beneficiary to whom it is given is not described in such a way that it is certain. Your bequest may also fail because it falls within the following kinds of gifts:
Gifts to those who witness your will
You need only two witnesses to the signing of your will or codicil, but if you leave a bequest to one of the witnesses or to the spouse or civil partner of one of the witnesses, although the choice of witness will not invalidate your will, the choice of witness will invalidate the bequest and it will not take effect unless the witness’s signature can be regarded as superfluous because you have used two other disinterested witnesses. To avoid problems do not choose beneficiaries or the spouses or civil partners of beneficiaries as witnesses to your signature.
Gifts which are contrary to law or contrary to public policy
If you include a bequest in your will which the law considers to be contrary to law or public policy, the gift will not achieve your wishes. If the bequest is considered to be essentially evil, e.g. a bequest conditional upon murdering someone, the bequest will fail completely, but if the condition upon which the bequest is given is merely prohibited by law or public policy, the condition will be void. If you intend that the gift shall only take effect if the condition is fulfilled, i.e. the condition is what is known as a condition precedent and the condition is void, the gift will fail completely, but if you intended that the gift shall take effect but cease if the condition is fulfilled, i.e. the condition is what is known as a condition subsequent, the gift will take effect free from the void condition. An example of a gift with a condition precedent is a gift to your son if he successfully completes the university course he is taking and an example of a condition subsequent is a gift to him, but if he fails the course, then to your daughter, although both of these conditions are of course valid ones.
You must distinguish between conditions (which may or may not be valid) and limitations which are restrictions upon the period of ownership, i.e. gifts until an event occurs, which are always valid.
Exactly what is considered to be contrary to public policy changes from time to time but a few principles can be stated.
- Gifts that weaken the family unit or the institution of marriage are contrary to public policy. Therefore if you leave a gift to your son if he leaves his wife the gift will not take effect because it is a condition which is void being both contrary to public policy and a condition precedent.
- Conditions contrary to the inherent legal nature of property, e.g. that it shall not be sold or shall be boarded up and not used for a long specified time, are contrary to public policy.
- Conditions which interfere with the right of a parent to control the education or religious upbringing of his child are contrary to public policy.
If you provide in your will that a bequest is to be forfeited if the beneficiary challenges the will, such a provision is enforceable and not considered to be contrary to public policy, but it will not be considered to have been breached by a beneficiary instituting proceedings to protect his rights. Also, the bequest might fail to take effect for reasons of uncertainty, unless the relevant clause is carefully drafted.
Gifts which infringe the rules against perpetuities and
The law contains very complex rules (mainly contained in the Perpetuities and Accumulations Act 1964), which prevent the income from a bequest being accumulated and added to the capital of the bequest by the personal representatives for an excessive period, rather than distributed to the beneficiary, and which also prevent bequests being made to beneficiaries whose identity might not be ascertained for an excessively long time in the future. These rules are known as the rules against perpetuities and accumulations. If you wish to make a bequest and the identity of the beneficiary might not be ascertained within 21 years of your death, e.g. a gift ‘to my grandchildren whether born before or after my death’, or a gift dependent upon the fulfilling of a condition which might not be fulfilled within 21 years of your death, be sure to consult a solicitor about the wording and to check whether it can be legally done. Similarly, if you wish the income of a bequest to be accumulated for a period that could exceed 21 years, consult a solicitor.
SECTION 33 OF THE WILLS ACT 1837, AS AMENDED
By this section, if you leave a gift to a descendant and that beneficiary dies before you but leaves his descendant who is living at your death, the bequest will take effect as a bequest to the descendant who is living at your death, unless your will shows a contrary intention. If it is not your intention that the bequest shall be construed in this way make your intention clear, for example by stating expressly what is to happen to the bequest if your nominated beneficiary predeceases you.
THE EFFECT OF DIVORCE OR ANNULMENT OF YOUR MARRIAGE OR DISSOLUTION OF YOUR CIVIL PARTNERSHIP ON YOUR WILL
Effect on bequests to your spouse or civil partner
Dissolution of your marriage or civil partnership does not invalidate your will, but a decree absolute (not a decree nisi) makes any bequest in the will to your spouse or civil partner as the case may be take effect as if the former spouse or partner had died on the date the decree becomes absolute, leaving bequests in the remainder of your will valid. Usually the bequest will become part of the residue of your estate and go to your residuary beneficiaries, but if the bequest is of the entire estate or of a share of the residue of the estate, it will be treated as not having been disposed of by your will and will be inherited on your death according to the laws of intestacy.
Effect on spouse’s or partner’s power of appointment, executorship and trusteeship
Similarly, any provisions in your will conferring powers of appointment on your spouse or partner (i.e. power for him to appoint or choose a beneficiary for part of an estate) or appointing him as an executor or trustee take effect after a decree absolute of dissolution of your marriage or civil partnership as if the former spouse or partner had died on the date the decree became absolute.
Effect on your spouse or partner as guardian
Unless a contrary intention is apparent from your will, an appointment of your spouse or civil partner as a guardian of an under-age child is revoked by a decree of divorce, annulment or dissolution which either is made in a court in England or Wales or would be recognised by such a court.
Because the above effects only occur on a decree absolute, take care to make a new will as soon as it is clear that your partnership or marriage has irretrievably broken down, because if you die before decree absolute, any will you have will stand and if you merely revoke your will, your estate will be distributed as though you were intestate.