Making a homemade Will, as opposed to instructing solicitors, can save people time and money but it can, in some cases, lead to significant difficulties.
Many solicitors advise clients against making homemade Wills, which if drafted incorrectly can be left open to misinterpretation and can lead to a costly fallout amongst your Beneficiaries.
If ever there were a case which illustrated this point superbly, it was the recent High Court decision in Taulbut v Davey. This case involved question marks over the enforceability of supplementary documents annexed to a Will and the removal of an Executor.
Taulbut v Davey
Mrs Pauline Wippell died in April 2013, and a month prior to her death she had Executed a self-made Will.
The Will included a Letter of Wishes and a two page document entitled “Notes”. Four people were appointed as Executors, three of whom were to receive cash payments of different amounts. Mrs Wippell directed that the remainder of her estate be used to set up a new charity, aimed at helping people with facial disfigurements.
The Letter of Wishes stated that one of the Executors, Mrs Davey, “may receive” the sum of £95,000 if she became divorced or widowed. The gift was set out in the Letter of Wishes, and not the Will, in case Mrs Davey’s husband were to find out, and, in due course, Mrs Davey stated that she had become entitled to the money. Paying Mrs Davey would have involved taking money out of the charity that the Executors had to set up under the Will. Mrs Davey refused to agree to money being transferred to the charity until the issue of her gift was resolved, and the other three Executors applied to Court for directions.
Letters of Wishes
One of the questions the Court was asked to decide was whether or not the Letter of Wishes had been incorporated into the Will, given that the gift appeared to conflict with the terms of the Will. The position at law is that a Letter of Wishes will usually be found to be incorporated into a Will, if it has been created at the same time as, or before, the Will itself and if the Will expressly refers to the letter.
In this case, the Court found that Mrs Wippell had referred in the Will to her Letter of Wishes, which were incorporated, but not to the supporting notes, which were excluded.
Despite this, the terms of a Letter of Wishes are not automatically binding and are usually advisory. If the letter is not worded very clearly, or if following the Testator’s wishes depends on other factors, then there is always some scope for the Executors to interpret it differently.
Crucially, the language used by Mrs Wippell in the Letter of Wishes was found to be “precatory” but not binding. In the end, the £95,000 legacy to Mrs Davey was not upheld by the Court. The Judge ruled that the gift was optional and depended on a number of factors, including there being more money available.
Removal of Executor
The three Executors also applied for an order to remove Mrs Davey as an Executor. This was based on the fact that she was in a conflicted position, and that by taking the stance she had done, she was obstructing the estate administration.
Removing Executors is not something the Court will do lightly and the Judge did consider the fact that the Testator chose Mrs Davey in the first place, and to some extent her choice should be respected. But in the end Mrs Davey was removed, the Judge commenting:
“The guiding principle for the court on any application to remove a personal representative under section 50 must therefore be to look at the particular circumstances giving rise to it by reference to the welfare of the beneficiaries. That inquiry is likely to involve testing whether or not those circumstances have operated to disrupt the due and proper administration of the estate by which their interests are intended to be served and, if so, consideration of the acts or omissions of the respondent representative that are said to have produced that situation.”
Essentially, Mrs Davey’s insistence on the £95,000 being paid to her, and refusal to agree to money being advanced to the charity, was adjudged to be detrimental to the Beneficiaries of the Will, and her own interests were in conflict. It was therefore appropriate for Mrs Davey’s appointment as Executor to come to an end.
Pitfalls of homemade Wills
The homemade Will in the case of Taulbut v Davey gave the Executors a significant job to do in setting up the charity. The process of forming a charity involves applying to The Charity Commission and justifying the charitable status of the intended organisation. Often, a Trust will be created with Trustees nominated, or a company with directors and a secretary, who will need to prepare annual accounts and so forth. Had Mrs Wippell formed the charity whilst she was still alive, things might have been easier for her Executors.
This situation was compounded by the fact that one of the Executors had a personal interest in the estate, which conflicted with the welfare of the charity. Given the conditions Mr Wippell tried to impose on the gift of £95,000, naming Mrs Davey as Executor ended up causing more problems. This demonstrates that in more complicated scenarios, it is always sensible to seek legal advice before naming your Executors.
Even if Wills are prepared by solicitors, there is no guarantee that a dispute will not arise. However, the significant problems in administering Mrs Wippell’s estate could perhaps have been avoided had her Will been drafted differently.