Wobbly will wording – common drafting errors and failure to update your will

6 November 2019

In kitchen drawers, banks and (to a much lesser extent) solicitors’ strong-rooms across the land, rest thousands of invalid and out-of-date wills, just waiting to disappoint the family and run up legal costs when we die.

Invalid, perhaps, because they’ve not properly been dated and signed in the presence of two witnesses - or which have been automatically revoked by a re-marriage.

Sometimes one of the witnesses is a beneficiary under the will – the will remains valid but the gift to that witness fails.

In practice, remarkably few wills prove to have been improperly executed. Any will-making kit purchased from a stationers or available online will carry clear instructions as to the formalities for executing a valid will and who may, or should not, witness the will. Most of us get the formalities right. The bigger problem is the number of people who haven’t made wills at all or who think that a 'letter of wishes' or a note of 'instructions on my death' will do the trick – they won’t!

Likewise, properly drafted but out-of date wills aren’t too much of a problem if it’s just the case, for example, that the executors have passed away themselves or a named charity no longer exists. These sorts of things are encountered regularly and can be dealt with by familiar process.

And if the main characters in the will haven’t changed over the last 25 years since the will was drafted (‘all to my wife, otherwise to the children’) then there’s unlikely to be a problem. Names and addresses may change – but "my daughter, Mary Smith of 25 Acacia Avenue, Guildford" is still clearly the same person, even though she’s since married and taken her husband’s surname and they’ve moved house three times.

The most challenging wills, prepared without professional assistance, are those worded in such a way that they not only confound the surviving family and their lawyers but also produce a result that’s clearly at odds with what the deceased would have wanted.

The sort of wording that proves either ineffective or which produces an entirely contrary effect to that intended normally falls into one of the following categories:

  • It just doesn’t make sense; or
  • It makes the wrong sense; or
  • It doesn’t have legal effect; or
  • It doesn’t cover a likely change in circumstance, a specific house or car no longer being owned at death, for example, - or having further children;
  • It doesn’t capture the whole estate or cover the ‘what if’ of, say, a beneficiary pre-deceasing (perhaps leaving a ‘partial intestacy’).

The most common problems stem from an inclination to think of one’s estate in terms of individual assets, investments and bank accounts and where you’d like each to go. Solicitors, on the other hand, encourage clients to think of their estate, for most part, as one big pot of assets to be divided up. Dividing the whole, as opposed to specifically allocating the component parts, should mean that the will still works, regardless of the change in size or composition of your estate by the time you die.

A gift of a specific asset (my Jaguar car or my house, 25 Acacia Avenue, Guildford) will fail if you changed car or moved house at the date of your death. Given that your house may well be your most valuable asset, failure of any gift of the house means that the intended beneficiary of the major part of your estate will be disappointed.

Likewise, a gift to a person who dies before you will fail. Unless you cover off what will happen if a beneficiary does then, if it were a cash gift, the amount will fall into residue. If it were, itself, a gift of a share of residue, then the share has no-where to go… and it will be divided in accordance with the intestacy rules.

If you’ve worked out the value of your estate now, and left a raft of cash gifts to reflect your current wealth now, then there’s an issue if your estate reduces in value between now and death so there’s insufficient to cover all the gifts. The ‘abatement rules’ will then kick in and the value of the gifts will reduce proportionately.

Additionally, some wording is too vague to be effective – £100 to ‘each of my close mates’.  

Some conditions attached to gifts may be invalid as contrary to public policy.

Some gifts may fail because the property doesn’t pass by will. The most common example is attempting to leave by will your half share in a house owned jointly as ‘joint tenants’, when it passes automatically to your co-owner regardless of what your will says. The same rule applies to joint bank accounts.

Some wording is simply and truly ‘wobbly’ - the meaning isn’t clear and the Deceased’s intentions hard to determine. Where all potential beneficiaries are on the same page and of accord as to what was intended, it’s not a problem.

Otherwise, there’s the ability to apply to the Court as to the construction of a particular wording.

Where there’s evidence that particular wording was a ‘mistake’ (or, rather, ‘clerical error’ as per Section 20 of the Administration of Justice Act 1982) or where evidence can be deduced that the wording of the will didn’t reflect the Deceased’s intentions, then an application can be made to the Court for the will to be ‘rectified’.

Generally, having your will prepared by an experienced solicitor removes the risk of ineffective drafting. But not always - mistakes can still sometimes be made. But the solicitor should have a detailed note of instructions on file, so there’s ready evidence of the mis-match between instructions and drafting. A rectification application is then usually the most time and cost–effective method of settling any claim for negligence on the solicitor’s part.

Having your will drawn up professionally must be the best advice. Better to spend money now getting things right, rather than substantially more money (along with time and bother) sorting out drafting issues after your death or leaving a will that doesn’t reflect your wishes. Don’t forget to review the will from time to time, just to make sure it still makes sense in the light of any changes in personal and financial circumstances, wishes and relationships.

About the author

Jim Sawer is a partner in our private client team. He has a broad private client practice and has advised families in the UK and overseas, including those with commercial and landed interests, for over 30 years.  Clients appreciate his ability to identify the true crux of a matter promptly and his results-orientated approach to resolving private client issues in the family context.

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