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The importance of clear drafting

Wealth Preservation / 02 September 2021

The Court has recently ruled in favour of a deceased man’s ex-wife, rather than his current wife (now widow), in a dispute over the meaning of the word ‘wife’ in their mother-in-law’s Will.

Don Ash divorced his ex-wife in 2013 and married his current wife, Maya Gocheva-Ash in 2015. Two years later, Don died unexpectedly, and his mother died shortly after him. In her Will, Don’s mother divided her £840,000 estate equally between her two sons, Don and Gordon, and specified that should Don predecease her, his share of her estate shall pass to ‘his wife Cindy Ash’.

At the time of his mother’s death, Cindy was no longer Don’s wife and Maya, Don’s new wife, expected to inherit his share of her mother-in-law’s estate. In the first instance, she argued that the description of ‘wife’ was to emphasise kinship rather than being a statement of fact, and in any event the ambiguous and equivocal meaning of the phrase ‘wife’ should be interpreted as if Don’s wife at the date of his death was the intended beneficiary. On the other hand, Don’s ex-wife argued that her name was specifically mentioned in the Will therefore her mother-in-law intended that the gift passed to her. The court ruled that at the time of writing her Will, the mother-in-law did not know Maya and her relationship with Don was never in contemplation, therefore the words in the Will should be interpreted as if the gift was intended directly for Cindy, rather than Don’s wife at the date of his death.

In a separate recent case in the High Court, an executors’ interpretation of a nil-rate-band clause was challenged by the residuary beneficiaries of an estate. The dispute was, again, over the wording of a clause and in this case, whether a nil rate band legacy was intended to be of the full £325,000, or only whatever was left once other legacies in the Will had been taken into account. Following a trial, the Judge agreed to interpret the ambiguous clause in a way that left the residuary beneficiaries with an increased share of the £3.1m estate and the nil rate band legatee received nothing, as the value of other legacies within the Will exceeded £325,000.

Both of these cases highlight the importance of careful drafting in a manner that is unambiguous, to avoid the risk and danger of the Will being misinterpreted and the intentions of the testator not being fulfilled on their death. Although ambiguity can arise as a result of drafting errors and is often the pitfall of homemade Wills, it can also arise as a result of a change in circumstances between the date the testator makes their Will and the date they die.

We advise clients to review their Wills every 3-5 years to ensure that they reflect their current circumstances and wishes.

 

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This update is for general purposes and guidance only and does not constitute legal or professional advice. You should seek legal advice before relying on its content. This update relates to the prevailing circumstances at the date of its original publication and may not have been updated to reflect subsequent developments. If you have general queries about our updates, please email: mailinglists@greenwoodsgrm.co.uk

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