Malcolm Emery, Partner in our private client team, highlights the importance of having a professionally drafted Will in place.

A Will is one of the most important documents that you will ever sign, yet many choose to draft their own, running the risk of unnecessary errors and complications.

The practical issues of not getting things right

A home made Will is more likely to include provisions where it is not exactly clear what was intended. This happened in a recent case where the court held an ambiguous clause in a Will should be interpreted in the same way as an ambiguous contract clause.

The testator was divorced and part of the divorce settlement required him to pay maintenance to his two children until they reached 18 years. Not longer after his divorce, the testator was diagnosed with Motor Neuron Disease.

The testator put a Will in place with the assistance of a financial adviser. One particular clause was difficult to interpret. The clause read:

“Maintenance: I give to my son and daughter as survive me free of all taxes to be paid in relation to the current Court Order as may be amended in time, therefore, if the maintenance is reduced then the reduced level can be accounted for.”

Shortly before his death the testator lost his job and stopped paying maintenance. He also applied to the court to reduce his maintenance payments, but the proceedings were not concluded before his death.

The decision and the ‘armchair principle’

It can be appreciated that the clause is poorly drafted.

In such situations the court can apply something known as the “armchair principle” which means they can stand in the shoes of the testator and decide what was the intention of the relevant words by reference to the facts or circumstances which were (or ought to have been) in the mind of the testator when he used those words.

The court decided that the testator realised he would die before his children reached 18 years and so he decided to honour the payments as set out in the original court order.

Why it is important to have a professionally drafted Will

Life can change quickly.  From new babies or relationships to changes in your financial situation.  A Will should not only deal with your current financial and family circumstances, but should allow sufficient flexibility to deal with future changes that may impact on you and your loved ones.    It is important that you ensure you have a Will in place and that is drafted by a suitably qualified professional.

Malcolm Emery is a dual qualified solicitor and chartered tax adviser and previously worked for HMRC.  Malcolm works in the Stephens Scown private client team and has extensive experience of dealing with professionally drafted Will.  To speak to Malcolm telephone 01392 429240, or email m.emery@stephens-scown.co.uk.