Court decides on Will construction dispute involving a homemade Will.
John Dickinson, a barrister at St John’s Chambers, recently acted for the defendant in the Will construction case of Amiee Shannon Steed (a Child by her Litigation Friend, Marilyn Joy Winn).
The defendant was the father of the testator and the sole executor of the estate under a homemade Will which contained the following simple provision:
“I … give authority to my father to dispose of all my possessions and affairs as he feels appropriate.”
The court had to decide whether the wording of the Will showed an intention by the testator to leave his entire estate to his father or alternatively, whether the wording showed an intention to create a trust which would benefit the claimant.
The judge ruled that the Will contained an absolute gift to the testator’s father. The court was assisted by evidence from the people who had witnessed the will who had questioned the testator about his intentions.
The court also considered the issue of impermissible delegation of testamentary power. It held that any rule against the delegation of testamentary powers would not be relevant in relation to an absolute gift to a beneficiary. The court gave the example of a husband who left his wife an absolute gift of his estate in the expectation that she would then decide how best to benefit their children. This, it said, would not be an impermissible delegation of testamentary powers.
The case underlines the difficulties that families and their lawyers face when Wills are written in terms that are unclear and ambiguous. Construction problems most commonly arise with homemade Wills as in this case. People often think they are saving money by making a homemade Will, but given the relatively modest cost of making a Will this is a false economy. When you consider the emotional price of the dispute alongside the legal costs of a Will construction trial it makes sense to consult an expert in preparing Wills to avoid later complications and disputes.