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Home Made Wills

There are two well known rules in the law. The first is that people who write their own wills without obtaining the benefit of legal advice are asking for trouble, and second, that a lawyer who acts for himself, has a fool for a client. Sadly one solicitor who drafted his own will amply demonstrated the truth of both.

In Anthony and another v Donges et al (Times July 22nd 1998), the testator, the solicitor, drafted his own will, in which he left to his widow

    'such minimal part of the estate as she might be entitled to under English law for maintenance purposes'

In other words, he wanted her to receive no more than he could get away with giving to her.

The case demonstrated, once again, some of the occasionally perverse logic which applies in these situations.

The clause was clearly uncertain in its effect, and implied that a court must be asked what was the amount she must receive. The only way of deciding the value of the gift was therefore to apply to a court. An application was duly made. The judge refused to set the figure as requested, and declared that the clause was void for uncertainty. There was no way that he could validly specify such an amount. Technically he applied the rule in Re: Hooker's settlement [1995] Ch 55), which prevents a Judge being forced to become an arbitrator. Once it became clear that a court could not settle the amount, there was no way of setting the value of the inheritance.

The result was that the clause was unenforceable. It had to be struck out, and the will could only be effective to pass the residuary estate to the testator's children.

The initial result of the hearing was that the widow received nothing. However, it was clearly in the minds of all concerned that she would then be able to make an application under the Inheritance (Provision for Family and Dependants) Act 1975, and could confidently expect to receive a rather greater share of the estate in due course.

It is worth noting that she may have been entitled to make such a claim in any event. The Act provides that she should receive 'reasonable provision', whereas the will purported to restrict her share to minimal provision.

When drafting wills for clients, issues such as this do arise regularly. This is particularly so in the context of second marriages or relationships. Clients are sometimes dismayed at the uncertainty, and the lack of freedom, to make the will that they would wish. Above all the case re-enforces the advisability of taking proper legal advice when making a will - even a solicitor got it wrong.

Important: Please note that our law-bytes are retained for archival purposes only. The law changes, and these notes are often, now, out of date. You must take direct advice on your own personal situation and the law as it currently stands.
All information on this site is in general and summary form only. The content of any page on this site may be out of date and or incomplete, and you should not not rely directly upon it. Take direct professional legal advice which reflects your own particular situation.
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18 October 2013 http://www.swarb.co.uk/lawb/wilHomeMade.shtml 60 18 October 2013