We all know that in an ideal world we should each make a will so that following our death everything will be in order…or will it??
For those of us who spend our time reading case law reports, we are well aware that whilst making a will is highly desirable, it does not mean that all is plain sailing following our death. There are a number of reasons for this, and making a so-called homemade will (typically to save costs) is one of them.
Let’s take a couple of examples.
Example 1: Step-children
John is married to Joan. They have two children, Tom and Dick. John has one daughter, Mary, from his first marriage and Joan, a daughter, Jane, from her first marriage.
In each of their wills, they make reference to their ‘children’. But precisely who are their children?
John leaves his four paintings to each of the ‘children’ but, unfortunately, Jane does not inherit as she is John’s step-child (and thus not included in the definition of a ‘child’).
Example 2: Charity
Hector’s wife, Harriet, has died. Hector made his will before she died. Hector is aged 70 and his wife was 15 years younger. They both had assumed that he would probably die first.
In his will, he left her everything, but never amended his will after she had died. On his death, their children inherit, which was not Hector’s intention, as in this case he would have wanted the NSPCC to inherit.
The NSPCC get nothing.
These are just two simple examples of wills not doing what the testator (i.e. the person making the will) thought they would do. It is, therefore, important to appreciate that a will is not, in fact, a simple document, and there are rules that apply which must be appreciated.
‘A will speaks from death’
The phrase ‘a will speaks from death’ is interpreted as meaning that with respect to property in the deceased’s estate, it is property identified at the date of death that is being referred to, but with respect to the identification of the objects (i.e. the beneficiaries under the will), it is identification at the date the will is made.
Deceased’s property
In olden days (pre-1837), any property acquired by the testator after he had made his will was not treated as having been left in his will, and thus the person who actually inherited this property was unlikely to be whom the testator had wished to inherit it. Fortunately, this is no longer the position; now, after acquired, property is included in the will.
Example 3: After acquired property
Jacky, in her will, stated that she wanted all her paintings to be left to her brother, Thomas. At the date of making her will, she owned just one painting, but between making the will and dying, five years later, she had acquired another ten paintings.
Thomas thus inherited all eleven paintings.
Example 4: Failure of a gift
Marion left her expensive necklace to her daughter, June.
However, between making her will and her death, she sold it to Barbara and thus, on her death, there was no necklace and hence June fails to inherit it.
Example 5: Replacement property
Harry, in his will, left his car to his son, Brian. At the date of making the will, his car was an expensive red Jaguar, but at the date of death, was a medium-priced green Ford.
Brian inherits the green Ford!
Beneficiaries
As stated above, the identification of the beneficiaries is determined at the date of making the will and not at the date of death, as applies to the above.
It might be thought that this is unlikely to cause problems. Whilst perhaps this is, in general, true, consider the following examples.
Example 6: Eldest child
Barry has three brothers: Abe, Bert, and Charlie. Charlie is the eldest of the three.
Barry, in his will, leaves his valuable stamp collection to his ‘eldest brother’ (it being Charlie at the date of making the will). Charlie dies before Barry. In which case, the gift lapses (i.e. Charlie does not inherit the collection).
Example 7: No change on divorce
Toby left his holiday villa to his sister and ‘her husband’.
Between Toby making his will and dying, his sister divorces her then-husband, and subsequently remarries.
On Toby’s death, his sister and her first husband (not her current husband) inherit, despite their divorce.
Wills are complex documents, and are interpreted in the courts according to a set of rules little known or understood by most of us.
Practical Tip:
If a will is to achieve what you want it to achieve, employ a professional so as to ensure that problems such as those highlighted above can be foreseen and dealt with effectively.
