Simple is not necessarily better when making a Will

Posted by Samuel Hardy on
We at Blake Morgan have blogged before on the importance of making a Will if you want to control what happens to your estate after death. But what actually makes a Will a 'good' or 'proper' one that does what you want it to do? Is legal jargon necessary?

Imagine you are writing your own Will. You say: "I give my personal effects to my cousin." Imagine now a solicitor writing the same Will, which reads "I give free of taxes to my cousin absolutely all my person chattels as defined by s55(1)(x) Administration of Estates Act 1925 as amended by s3 Inheritance and Trustees' Powers Act 2014." Do both not do essentially the same thing, regardless of legal terminology and statutory references? Not necessarily!

What do you class as a "personal effect"? Trinkets one carries about oneself; vehicles, artwork, books, loose change or perhaps media? Whilst personal definitions of this nature are influenced by, say, language, locality, traditions and social movements, legal definitions can be very specific.

Does it matter?

Nobody wants a gift in their Will, or even the whole thing, to fail for uncertainty or take some effect other than the one desired. Simplicity in wording does not necessarily equal clarity, and 'jargon' can often be vital in establishing meaning if, heaven forbid, arguments break out that result in a Will being the subject of litigation.

Let us be clear: a Will does not have to be drawn by a professional to be a valid and legally-effective testamentary instrument (to use the jargon). A Will is valid if it complies with the legal formalities set out in the Wills Act 1837 – available to the public online. That doesn’t mean it isn’t advisable to obtain professional assistance in drawing up a Will. Seemingly simplistic, innocuous and plain-English writing can have unforeseen consequences and be expensive to argue and sort out.

Some examples:

  • Belongings or chattels: under the modern definition, "chattels" extends to tangible, moveable things – but doesn’t cover items held for business or investment purposes. So beware – your work laptop situated in your office at home might not be included. A pet is usually considered a "personal chattel" by law, unless it is a "working" or "business" animal (e.g. a farmer's sheepdog). Vehicles are usually included, with the same caveats – in the case of Re MacCulloch [1981], a personal yacht was also hired out. The finding that more of its time was spent hired out than for pleasure mean it was classed as a business chattel, rather than a personal one.
  • Personal property: be wary of this one! "Real" and "personal" properties have specific meanings in legal terminology. In its simplest form, "real property" is freehold land. "Personal property" is, generally, chattels; although it can also refer (strangely enough) to leasehold property, and to intangible property such as copyright and shares.
  • Issue and descendants: this one is more subtle. "Issue" is a legal term generally used to refer to lineal descendants. If somebody gifts something to "female issue" then this will be interpreted as female descendants in just the female line. "Female descendants" will be taken to mean females on both the male and the female lines.

The point is: just because a word sounds like its meaning is clear in everyday English, it may not be clear in English law!

Is simplicity dangerous?

A case was recently heard in court concerning a professional genealogy firm which had obtained a grant of representation on intestacy, when in actual fact the lady in question had died leaving a home-made Will. I was struck by the words spoken by the judge who described the home-made Will: "commendably short and a model of simplicity and clarity rarely seen these days". I have no doubt that the Will in question was clear and simple. However, I find the insinuation that simplicity equals 'better' to be incorrect at best, and at worst irresponsible. It could be taken to mean that solicitors who prepare Wills containing lengthy provisions need not be doing so, which isn’t the case.

In many cases, legal language must be worded in an extremely precise manner to have the desired effect. The shortest known litigated Will was considered in the case of Thorn v Dickens [1906]. The gentleman's Will, which was properly executed, simply read "all to mother", referring to his wife at the time. He possibly intended that his children would read this, and realise that he was referring to their mother. However, a court will not lightly try to infer what a person might have meant by their will, as this would risk undermining the law governing this area.  The gentleman may have thought at the time that he was being clear and simple in expressing his wishes; however, this resulted in costs being incurred by the court. Whilst this might be an unusual case, I hope this illustrates in some way my point that simple does not necessarily equal better!

Blake Morgan has a team of specialist and experienced succession and tax advisers. We can help you to prepare your Will, and explain all of the possible options and outcomes – not only take into account your current circumstances, but how you can ensure your beneficiaries are well cared for and that your estate is protected. Please contact us to discuss how we can help you in making your Will.

About the Author

Photograph of Samuel Hardy

Sam advises and acts in administration of estates, specialising in intestate matters with complex practical issues.

Samuel Hardy
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