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Where there’s a will there’s a way? Dealing with ambiguity in wills

Feb 26, 2024 | Uncategorised

In the case of Hawken v Jelbert & Anor (2022), the court had to decide whether a man had left his partner a bungalow. The will included a plan of his property with a shaded area that was meant to show the extent of the gift. However, a parking area just beyond the property’s garden was left unshaded.

This led to a dispute between the man’s partner and his son. Did the inheritance include the unshaded area?

This is a classic example of how an ambiguity in a will can lead to a legal dispute after the testator’s death. When writing a will, words matter.

You don’t need a solicitor to write a will. But a key benefit of getting a solicitor’s help is that they’ll be eagle-eyed with regard to ambiguity. They know that ambiguity in wills can lead at best to costly legal disputes and at worst to an invalid document – so a good lawyer will do all they can to ensure there’s no room for dispute.

Homemade wills, by contrast, are sometimes prey to ambiguity. To take a simple example, if you say that you leave your jewellery to your “family”, does that include cousins or just close family?

It may not seem like a big deal. But an ambiguity like this can create bad blood, especially at a time of grieving.

Before we explore the topic further, it’s important to make a distinction between the testator and the will writer. The testator is the subject of the will. The will writer could be the testator or a legal professional who writes it for them.

How can you deal with ambiguity in a will?

It depends. If all the concerned parties can agree on an interpretation, a deed of variation can be prepared. This officialises the interpretation and clears up the ambiguity.

Alternatively, you can get a solicitor to provide a written opinion as to what was intended by the ambiguity. The court will then make a decision based on the solicitor’s opinion.

The executors can make an application to the court, asking them to declare what the words mean and how they should be applied. They will consider the testator’s intentions, the facts that were known to the parties at the time the will was written, and “the natural and ordinary meaning of the word”.

This last phrase is important. The court will ask what the words in the will mean to the person in the street, as well as seek to identify the testator’s intentions. However, they usually can’t supply, omit or change words.

What about mistakes?

Sometimes, testators make mistakes – and sometimes will writers make mistakes for them. This could be because of a secretarial slip or because the legal professional didn’t understand the testator’s intentions.

If it can be demonstrated that the testator was misled or misunderstood by a professional, a claim of negligence can be made. However, if the will was homemade, no rectification can be made.

The case of Tish and others v Olley and others (2018)

In this case, Mr Raymond Tish was a partner at an accountancy firm. At the time of his death, he was divorced from his third wife Amanda, having had two children together, Arabella and Revan.

After the divorce, a consent order stipulated that Raymond should make annual maintenance payments to Amanda of £11,000 per year for each child. But he became ill and left work, meaning he couldn’t afford these payments. He applied to the courts to reduce them.

His will included an ambiguously worded clause: “I give to my daughter Arabella Camille Tish and my son Revan Elliot Tish as shall survive me free of all taxes maintenance 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”.

What did “the current Court Order” refer to? Was it the consent order made in 2007? Should a consent order be applied after someone’s death? Louise Tish, Raymond’s fourth wife, argued that the clause was invalid because of this ambiguity.

To resolve this issue, the court applied contract principles. This meant that they applied, in Lord Neuberger’s words, both “the natural and ordinary meaning of… words” along with “common sense”.

Common sense, the judge argued, suggests that this clause was intending to make an annual gift of the sums laid out in the 2007 consent order. “It seems to me,” she said, “very implausible that Mr Tish would deliberately include a provision in his will that was in fact a gift of nothing.”

The moral of the story? First, a judge will take common sense into account as well as the surface reading of an ambiguous clause. And second, a well-drafted will wouldn’t have led to this dispute in the first place.

What are the most common ambiguities in wills?

The most common ambiguities in wills are those that make it difficult to identify who the beneficiary is (phrases like “my cousin”, for instance) or which property or asset is being referred to.

What should you do if a will is ambiguous?

If you’re an executor, trustee or beneficiary of a will and there’s an ambiguity that’s causing disagreement, it can be advisable to seek legal advice to resolve the issue as soon as possible.

Will writing isn’t something that most of us like to think about. But an ambiguity in a will can have real-world consequences for your beneficiaries. That’s why it’s important to do the job well – and to review it when your circumstances change.

A solicitor will write the document for you and put it in safekeeping. You can rest assured that your will is free from ambiguities and won’t cause expensive, stressful disagreements down the line.

Are you looking for a will writing service? Do you need a solicitor to help you review a will? At Milners Law, we have a team of trusted probate solicitors who can provide expert inheritance law advice. Get in touch if you’d like to arrange a free consultation.

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