DIY Will error ends in the High Court

Do you need a lawyer to make a Will? The short answer is - no, you don't. There is nothing to stop anyone using, for example, one of the standard Will forms that are available. Most people think that what they need is a "simple Will", and it is perhaps tempting to think that consulting a lawyer is a waste of money. However, the recent case of Spurling v. Broadhurst provides a graphic example of how easily things can go wrong. In that case, the confusion caused by a misplaced comma ended up having to be resolved by the High Court.

The testator, a Mr. Gibbons, died leaving no children or other family. However, he had been particularly close to two families and acted as godfather to a number of the children and grandchildren of the families. Mr. Gibbons left a handwritten Will. After providing for the payment of debts and taxes etc, this gave the whole of Mr. Gibbons' estate:

"... to Veronica Broadhurst, Ann Foden, the living grandchildren of Veronica Broadhurst, and David Spurling in equal shares.".

The main problem concerned the comma following the second reference to Veronica Broadhurst. Firstly, it was not clear whether the gift was to David Spurling or his living grandchildren. Secondly, there was ambiguity as to how the estate was to be divided up. For example, one possible reading was that it should be divided as follows:

- one quarter to Veronica Broadhurst;
- one quarter to Ann Foden;
- one quarter to be divided between the grandchildren of Veronica Broadhurst;
- one quarter to be divided between the grandchildren of David Spurling

The Executors of the Will took the view that the gift could be read in at least four different ways. In the end, they felt that they had no option but to refer the matter to the High Court.

The Judge ruled that, in his view, the evidence showed that Mr Gibbons had been equally close to both families and that he probably intended to treat them equally. He interpreted the gift as a gift to David Spurling's living grandchildren. Finally, he ruled that Veronica Broadhurst, Ann Foden and the eleven grandchildren were entitled to an equal one-thirteenth share of the estate.

So, the matter was finally resolved - not, however, without a trip to the High Court, with all the expense, hassle and stress that that entails. In fact, the family should probably consider itself fortunate that the matter has been resolved without further cost and delay. The Judge was not entirely happy with the way in which the case had been handled. All the beneficiaries (or the parents of the child beneficiaries) had indicated that they would go with whatever the Court ruled and only the Executors had been legally represented. The Judge accepted that that had been done for the sensible reason of avoiding unnecessary costs. However, some of the beneficiaries were under 18. In such cases, the children are normally separately represented. The Judge was in two minds as to whether he should adjourn the case to allow that to happen. In the end, he satisfied himself that he was in a position to deal with the case fairly. However, the Court would probably be reluctant to adopt such a flexible approach when confronted with a more complex or contentious case.

To find out more about making a Will, please contact Esther Marchant.

Filed: 14/12/2012 12:02:32