Ambiguity – the fly in a Will’s ointment

 In Gill's Blog

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how to avoid mistakes in Will drafting

A Will is supposed to soothe the succession to a person’s estate when everyone is grieving. It should not add to the distress. With so many professional bodies out in the Willosphere each with Codes of Conduct and Good Practice guides, it is surprising that still Will drafters make errors that result in an ambiguous Will igniting litigation to resolve what was intended.

A sound footing makes for a sound Will. This may seem laborious and not cost-effective, but time spent on taking good instructions and making proper attendance notes is actually time well spent, given the scrutiny which Will files receive if things go wrong.

If you are a member of a professional body which issues good practice guidance in relation to the preparation of Wills, it makes sense to follow that guidance or face public criticism should a Will prove to be ambiguous or meaningless when interpreted following death.

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In order to establish what the wording of a Will actually means, we know from Marley v Rawlings [2014] UKSC 2 that the approach to interpreting it is to first of all establish the testator’s intention from the words in the Will, ignoring any subjective evidence of the testator’s intention.

“….The question is not, of course, what the testator meant to do when he made his Will. But what the written words he uses mean in the particular case – what are the “expressed intentions” of the testator” – per Viscount Simon in Perrin v Morgan [1943} AC 399.

If this exercise reveals that some of the Will is meaningless or ambiguous, then you can see what extrinsic evidence there may be of the testator’s intention – s.21 Administration of Justice Act 1982.

If it becomes apparent that the Will as drafted did not fulfill the testator’s intentions, then can it be rectified? Since 1 January 1983 it is possible to arrange for a rectification of a Will in certain circumstances – s.20 Administration of Justice Act 1982. The circumstances are that a Will fails to carry out the testator’s intentions because of either a clerical error or a failure to understand his instructions.

Not all cases of negligence can be remedied by rectification but certainly most of the cases where rectification is a remedy will involve a mistake which must therefore be negligent. It is therefore wise to consider agreeing to bear the costs of the rectification action and even co-operate if a mistake has been made (subject to agreement with your insurers) in an effort to minimise any loss incurred otherwise as a result of your negligence.

Clearly, it makes sense, to test the words you have drafted against the original instructions and make sure that the outcome is a set of unambiguous words producing exactly what the testator wanted.

The recent case of Eade v Hogg [2021] EWHC 1057 showed the following mistakes in the solicitor’s approach from which we can all learn:

  1. He took instructions from a husband and wife simultaneously in a situation where a conflict of interest was present. Whist we happily often see married couples together to take instructions we should always be alert to situations where the parties should properly be seen separately to establish whether the firm can act for both of them; or at all e.g. where, as in the Eade case, a business was involved; or where it is a second marriage and one party may be seeming to act to their detriment.
  2. Instructions were taken from only one party to the marriage on behalf of them both. This should never be acceptable. Each person should freely give their own instructions.
  3. He ignored the ‘golden rule’ in circumstances where the age and health of the testator should have triggered at least a warning that testamentary capacity may have been compromised and a medical assessment maybe needed.
  4. He failed to make any written, contemporaneous attendance note or record of the meeting at which instructions were taken. This is a cardinal error and breaches just about all professional bodies’ codes of conduct or best practice. It is also ignoring simple common sense.
  5. There was no discussion over the discrepancies between the terms of a previous Will and the new Will so no record of why the changes were being made by the testator. Whilst it is not necessarily compulsory it can be a useful way of establishing the capacity of a testator and also can help to spot undue influence.
  6. He failed to send a summary of his instructions to the testator or even send him a draft Will to consider with an explanatory note. Many firms would go straight to a draft Will with explanatory notes but when instructions are complicated it can be helpful to confirm your understanding, as the drafter of those instructions, is precisely what the client intended.
  7. He used the old Will as a precedent, making hand-written amendments to it for his secretary to copy type and then didn’t check what she had typed. Checking is sadly something that often gets squeezed out of the Will preparation process due to cost and time pressures, and yet it is a vital step to ensure there are no typographical errors.
  8. The new Will contained a discretionary power of appointment and yet he failed to prepare any letter of wishes to guide the trustees in exercising their discretion. The provision of a letter of wishes has become commonplace where there are overriding powers which are left with trustees who may not be aware otherwise of what outcome the testator was trying to achieve.
  9. To make matters worse, the solicitor lost the client’s file when he moved firms. This led to the court suggesting there was a breach of the data protection rules which should have been notified to the Information Commissioner’s office, the firm’s insurers and the Solicitors Regulation Authority. Now many firms have adopted electronic storage of files, the security of data storage and transfer is increasingly important.
  10. Rectification was then needed to address the clerical errors in the typing from his handwritten annotations on the old Will and for the failure to take proper instructions, so that he failed to understand his instructions.

One can understand how each of these problems arose – mostly it will be the pressure of work and the challenge to meet financial targets. But, as we saw with this case, it makes no economic sense to cuts corners and to ignore tried and tested processes and procedures aimed at minimizing errors in the drafting of Wills. This case highlights many learning points.

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