Case study: Why your will is important

Case study: Why your will is important

We have recently been assisting a lovely family who were trying to sort out their late Sister/Auntie’s will. For the purposes of this case study, we will call her Trudy. The process made them realise why your will is important.

Trudy had acquired a template for a Will from a relative who was also a Barrister. The Barrister did not assist Trudy in drafting the Will, but rather a friend assisted Trudy to draft the Will, who had no legal experience. Trudy also had no legal experience, and with this template, they drafted Trudy’s Will together and had the local Pharmacist witness the document.

It was clearly Trudy’s intention to leave her beach house to her sister, who was also her executor, and for her sister to allow her family to use the beach house for their own enjoyment. The family want to keep this arrangement as a legacy to Trudy, however Trudy did not leave any money for the upkeep and outgoings of the beach house, so Trudy’s sister has been paying the upkeep of the property since Trudy’s death. This has caused a financial drain on Trudy’s sister that was unintended at the time, and now the beach house needs some substantial repairs to be carried out, the issue has come to a head.

The problem is, when Trudy drafted her Will, she did not understand the exact meaning of the words. She stated that she left her beach house to her sister as Legal Personal Representative (Executor) ON TRUST for the use and enjoyment of four members of her family “and their families”, and the two children of the friend who helped her to draft the Will “and their families”. This was the entire clause with no finality and no end. There was no direction as to how long the property remain in the name of the Legal Personal Representative, and who it would then be transferred to. The beach house was left in legal ownership limbo.

One of the issues here is that Trudy and her friend did not understand that by leaving a property to Trudy’s sister “as Legal Personal Representative ON TRUST for” meant that it did not belong to Trudy’s sister. She was holding the property as executor for the benefit of others, including herself not as executor. The second problem arose when there was no direction for what happens next, so the property could not be transferred any further than to Trudy’s sister as Legal Personal Representative. Added to this issue was the fact that Trudy has included ‘and their families’, making the class of beneficiary extremely open and essentially never ending. The clause was clearly unworkable and unpractical. Had Trudy taken the time to see a Solicitor to draft her Will, her Solicitor would have understood exactly what she wanted, and would have drafted it accordingly. The beach house would likely have been left to Trudy’s sister with a right to occupy given to certain family members who would have been named.

As it stands, the family are now attempting to come to an agreement between the six of them and to draft a Deed of Family Arrangement to bring some finality to the clause, and only four of the six of them are in agreement. Without the other two parties ageing to how to proceed, this matter will most likely end up in the Supreme Court to determine, with all the stress, time and costs that go with such an Application.

Which brings me to the moral of this study. You should never look at a Will and think you can do yourself as good as a Solicitor who has studied and trained for years to learn their craft, and draft such documents all the time. See the value in having a good solicitor draft your Will, so it will be done right and your wishes will be carried out as they will have been accurately recorded. Otherwise, you may very well be leaving your family with a huge problem to sort out through the Courts, costing far more than the cost of a Solicitor to draft your Will in the first instance. There is real value in having these documents drafted by an expert.