A recent case concerning an ambiguous Will has highlighted the need for absolute clarity when it comes to recording your wishes, and highlights the importance of taking solid legal advice when drafting such an important document.
In the case of Wales v Dixon (2020 EWHC 1979 Ch) the England and Wales High Court had to decide how to interpret a Will which was unclear as to who was to inherit. Mr Wales's Will left the residue of his estate (i.e. everything left after payment of debts, expenses and any specific legacies) to 'such all of my nephew's and niece's children living at my death subject to each attaining 18 years of age'. The issue was that whilst Mr Wales had two blood nephews and two blood nieces, he also had three nephews by marriage and one niece by marriage in addition to a predeceased nephew by marriage. The question of who was intended to inherit was unclear as to whether this should include only those related to Mr Wales by blood, or also those related by marriage.
In total there were fifteen potential beneficiaries (seven being children of all the nieces and nephews related by blood and eight being children of those related by marriage) and so the difference in how much each beneficiary would receive depending on how the Will was interpreted was not insignificant. Ultimately the court, having looked at the surrounding circumstances, decided that the deceased must have intended to include the children of his nieces and nephews related to him by blood and by marriage and thus the estate was split fifteen ways.
Although this was an English case, the message it highlights can certainly carry across the border…
What happens if your Will is unclear in Scotland?
In Scotland, generally Wills are to be interpreted intrinsically – or within the four corners of the document. The question is what the document actually says, which may well be different from what any potential beneficiaries would like it to say. Any extrinsic evidence will not, as a general rule, be permitted when it comes to determining the intention of the testator.
It is also possible in certain circumstances, to apply to the Scottish courts to have an error in a Will rectified. The Will must have been prepared by someone other than the testator and it must be shown that the terms do not reflect the testator's intentions, with extrinsic evidence used to support the change. Any change must be presented within 6 months from the date of Confirmation (or the date of death if Confirmation is not being applied for).
Although there are therefore ways in which an unclear Will (and/or one which does not reflect the testator's wishes) might be dealt with, the process and costs involved will likely be considerable. In the case of Mr Wales's Will, it was agreed that the costs of all parties would come out of Mr Wales's estate, thus reducing the pot for everyone. It is possible that such a lack of clarity might also cause upset at what is often already a fraught and difficult time.
The best course of action is undoubtedly to ensure that you have an up to date Will in place which accurately reflects your wishes and makes clear who you wish to inherit.
Get in touch
If you wish to put a Will in place or discuss what would happen in your circumstances, please do not hesitate to get in touch with a member of our Private Client team and we will be more than happy to assist:
Elgin: 01343 542623
We have solicitors and offices across the country and are ready to help.
We can provide the assistance you need to protect your assets and your loved ones. This will allow you to put your mind at ease, knowing everything is in hand.