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Choosing wisely - the importance of a skilfully drafted will

Posted: 28/02/2017

Writing a will is something that many of us never find time to do, with an estimated one in three people dying without ever having made one. If you die without preparing a will, then the intestacy rules will determine who will inherit your assets. Sadly, this can often be contrary to your wishes and your estate may not pass to those you would like to inherit on your death.

For people who live with a partner but who are not married or in a civil partnership, the intestacy rules can have particularly far-reaching consequences. They will determine who inherits your estate and your assets will pass automatically to your closest blood relatives, which can often be children, parents or siblings rather than your partner.

It is important to ensure that your will is skilfully drafted so that it accurately reflects your wishes and puts these into effect on your death. The recent case of The Royal Society v Robinson & Ors [2015] EWHC 3442 (Ch) highlights the value of precise drafting and is an example of how failure to do so could lead to partial intestacy and assets not passing in accordance with an individual’s wishes. The testator, Mr Crowley-Milling, prepared an English will in 2009. He made certain gifts in his will but left the remainder of his estate to The Royal Society. Among the assets at the date of his death were substantial funds held in various offshore accounts in the Isle of Man and Jersey which he had intended to pass to The Royal Society.

The drafting of Mr Crowley-Milling’s will, however, limited its scope to his property in the United Kingdom. The problem with the drafting of this provision is that any normal interpretation of the words “United Kingdom” would not include the accounts in the Channel Islands and the Isle of Man. Mr Crowley-Milling did not make any other will dealing with those assets. He therefore potentially died intestate in relation to the offshore accounts, meaning that they would instead pass to his next of kin, rather than his intended beneficiary, The Royal Society.

The court was asked to make an interpretation of the meaning of the words “United Kingdom” in Mr Crowley-Milling’s will. It reached the decision to construe the meaning as including the Channel Islands and the Isle of Man based on a raft of evidence which made it clear that Mr Crowley-Milling’s intention was always that his offshore accounts should be included within the scope of his will. International assets and their geographical location should always be reviewed when preparing a will and clearly defined to avoid potential partial intestacy situations.

Although you can draft a will yourself and there are many ‘DIY kits’ available to assist, the process is open to a catalogue of potential pitfalls and errors which are very easy to make. The Law Society has published its 10 top tips to ensure that on your death your estate passes to beneficiaries of your choice and notes that you should choose who draws up your will wisely.

Seeking advice from a professional can help avoid drafting errors and unintentional consequences such as your will not being valid, your beneficiaries being subject to a large tax bill or your estate not being left to your chosen beneficiaries. If you require any further information, our specialist team would be very happy to help.

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