There are two well known rules in this area of law.
The first is that people who attempt to write their own Wills without obtaining professional advice are asking for trouble. The second is that a solicitor who acts for himself has a fool for a client. One solicitor who drafted his own Will provides a clear demonstration of both of these rules in practice!
In Anthony and another v Donges et al (Times July 22nd 1998) the testator (a solicitor) drafted his own Will in which he stipulated that his widow should receive:
‘such minimal part of the estate as she might be entitled to under English law for maintenance purposes’ The clause was clearly uncertain in its effect and suggested that the Court must decide the value that she was to receive. The only way of deciding the value of the gift was to make a formal application to the Court. An application was made but the judge refused to set the requested figure and declared the clause void for uncertainty. The judge stated that there was no way he could validly specify such an amount. He applied the rule in Re Hooker’s Settlement [1995] which prevents a judge being forced to become an arbitrator. Once it became clear that the Court was unable to set an amount, and there was no other way to establish the value of the inheritance, the clause was deemed as unenforceable. It was struck out and the Will was only effective in passing the residuary estate to the testator’s children.
The initial impact of this was that the widow received nothing however it was clear that she would be able to make an application under the Inheritance (Provision for Family and Dependents) Act 1975 and would receive a considerably greater share of the estate.
When drafting Wills issues such as this do arise, particularly where second marriages are bought into the equation.
Clients can often be disappointed with the uncertainty and lack of freedom to make provisions in their Will that they wish to. This case certainly reinforces the need for clients to seek professional advice in making a Will….maybe this solicitor should have done the same.
