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A cautionary tale of a simple Will

10 Nov 2020

As professionals we are informed frequently by prospective clients that they require only a simple Will and I say repeatedly ‘there is no such thing as a simple Will’.  Of course, this is not quite true and for some a simple Will is all that is required.  However, that does not mean that the process of making a Will can be in any way shortened or that less care should be taken.
 
The recent case of Wales-v-Dixon & Others has set out better than I could the risks behind a lack of thoroughness when preparing what should have been a simple Will.
 
In this case the deceased approached the Co-operative Legal Services eight months after the death of his wife with a request that they prepared a Will for him gifting several legacies totalling £4,500 and leaving the residue of his estate, a further £620,000, to the children of his nieces and nephews.  The deceased had no children with his late wife and his estate was not taxable.  His late wife had left everything to the deceased despite having plenty of nieces and nephews of her own.  Previous mirror Wills had left the residue of their estates to a named selection of nieces and nephews of them both.
 
A telephone conversation with the deceased was the basis of the instructions taken and a Will was duly drawn up on the terms requested.  No information about the deceased’s family was taken.  Earlier Wills made by the deceased were not discussed and exact details for the nieces and nephews were not noted.  The majority of the time was spent focusing on the legacies that the deceased wished to include.
 
The use of the term ‘children of my nieces and nephews’ was unclear.  The executors took a neutral position but the children of the deceased’s nieces and nephews and the children of the late wife’s nieces and nephews both instructed solicitors.  The former argued that nieces and nephews meant only the blood relatives of the deceased and the latter argued that nieces and nephews should be expanded in this case to include nieces and nephews by marriage.
 
The Court was very critical of Co-operative Legal Services stating:
  • The striking feature of the communications between the deceased and the Co-operative Legal Services is the lack of any focus…on clause 7 [the residue clause] (as opposed to the money bequests under clause 4) and the complete lack of any attempt to establish by name or parent who was intended to receive a share of residue
  • This illustrates graphically the dangers of taking instructions by telephone from an elderly widower without sight of his former Will or knowledge of his family tree
  • Clause 7 of the Will is badly drafted.  It contains grammatical and punctuation errors.  It fails to identify by name or parent or family the intended recipients of the Will
  • The manner in which the deceased’s instructions were taken and the poor quality of clause 7 enhances the scope of giving the words an extended meaning
 
Whilst I do not know the exact cost of the litigation in this case, all costs were directed to come from the estate, and litigation of this type is likely to have been in the tens of thousands of pounds.  Even if you set the issue of costs aside (and why would you) the fact that the deceased died in 2015 and a judgment has only just been issued should be warning enough.
 
Even now, when face to face meetings are not possible, we still take a full family history, review old Wills and get to know you and your family as far as possible.  Sometimes this can seem excessive but, in reality, it is simply our way of ensuring your wishes take effect and that your estate can be administered without expensive litigation.
 
It is possible to find low cost Wills prepared by professionals but caution should be taken and sometimes saving a few hundred pounds in your lifetime is a false economy.  We offer a range of flexible fixed fee options ensuring every client has the advice and care they require.
 
If you have any questions about making a Will or would like a review of your current will to ensure that it meets your needs please get in touch with Jennifer Charlton.
 

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