All to Mother

Wills and Codicils | 24 October 2024

When a will is drawn up by a legal professional you can be confident that it covers the necessary legalities. Hopefully you have been nudged to think about the important considerations, such as funeral arrangements, the appointment of guardians and protecting against divorce and bankruptcy, and those instructions have been included accurately in the final document.

Wills are not terribly easy to understand as they do not include full stops and commas. Historically grammar was omitted as there was a lack of understanding in respect of its proper use and, as such, inclusion of full stops and commas in the wrong places could unintentionally change the whole meaning of the document. If you have made your will with Arcadia you will have been provided with a draft document to check and a covering letter to clearly explain each clause.

Homemade wills unfortunately often create ambiguities, either because they have missed something out that needed to be included or because the instructions can be viewed in different ways. The shortest will ever written in the UK has become well known in the legal community, not just because it contained just three words, but because, even keeping it that simple, it was not clear what the testator intended!

The Testator in the case of Thorn v Dickens (1906) created a valid will that simply said: “All to mother”. He had both a surviving mother and a wife. His wife contested the literal interpretation of the words. The Court heard that he always called his wife ‘mother’. After much wrangling (and no doubt a huge amount of expense) it was ruled that he intended to leave his entire estate to his wife. It could so easily have gone the other way.

The Wills Act 1837 sets out the criteria for a valid will, which merely has to be in writing, signed by the testator, in the presence of two witnesses. This makes it easy to execute a valid will. However, there are pitfalls. Firstly, the witnesses should be independent. If one of the beneficiaries witnesses the Will then they will not be able to inherit under it. Secondly, the witnesses must be over the age of 18 years. Using a minor as a witness will potentially invalidate the Will where there is only one other witness.

It would be biased and unfair to imply that all wills prepared by legal professionals are trouble free. It is easy to overlook the incorrect spelling of a name or to omit one individual from a long list of legatees. However, such errors are rare and almost entirely eradicated by providing the testator with a draft of the Will for approval.

When clerical errors are made it is possible for the Court to rectify them if the mistake is an obvious one. In Marley v Rawlings and another (2014) a husband and wife executed mirror wills leaving a substantial legacy to a friend on the death of the second of them. The wills were prepared by their solicitor and executed in his office, with him acting as one of the witnesses. Unfortunately, he handed each of them the other’s will to execute and this was not noticed until the second death. The Court noted that the wills were identical and that the testators’ wishes were clear and therefore rectified the error thus ensuring the payment of the legacy.

Preparing your own will may seem like a simple task. Unfortunately, how well you carry out that task will not be known until you pass away. A short-term saving could be a long-term financial catastrophe.

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