The Importance of Using Accurate Terminology in Wills

Whilst we all fully appreciate the fact that using the correct terminology in all areas of law is imperative, Wills are perhaps of the most importance. After all, we are talking about discharging the last wishes of the deceased: therefore, we really do need to ensure we get things just right.

Alas, though, when it comes to the terminology used in Wills, this is not always the case. It takes just a couple of words that could be construed in another way to be inserted into a Will to really mean the difference between the testator’s dying wishes being carried out and part or even all of the Will’s legacies falling into intestacy. 

This very issue was recently re-evaluated when a Will stated that it was to deal with all property in the “United Kingdom.” Because the property that could be described in such a way was only to be found in the Channel Islands and the Isle of Man, and because these islands do not form a part of the United Kingdom of Great Britain and Northern Ireland (the clue is in the official name for our country), this property was liable to fall into intestacy.

Indeed, this was far from being the first time the courts of England and Wales were presented with problems arising from ambiguous terminology used in Wills. This is why the case of Marley v. Rawlings [2014] UKSC 2, [2015] AC 129 saw Lord Neuberger state that when there is any ambiguity with the terminology in a Will, the court is concerned with ascertaining the intention of the party or parties, and it does this by considering:

(a)     the natural and ordinary meaning of the words;
(b)     the overall purpose of the document;
(c)     any other provisions of the document;
(d)     the facts known or assumed by the parties at the time that the document was excuted;                        
(e)     common sense;
(d)     subjective evidence of any party’s intentions. 

In addition, in relation to a Will, or a provision in a Will as opposed to a contract, it is possible to assist its interpretation by reference to evidence of the testator’s actual intention.

So, the courts will do their level best to ascertain the actual intention of the testator when the Will was made. Given the circumstances, this guidance and decision in Marley v. Rawlings really does seem to follow the most sensible approach.

If you have studied Probate Law in even more detail, you will realise that trusts have the potential to throw a Will into doubt very easily if a number of factors are not observed when the Will Trust is created. These include the requirement for the “declaration of trust” to be worded in an exact way so as to clearly identify who the trustees will be; who the beneficiaries of the Will are; and as and when they will come into possession of the trust property. There are myriad other factors that go hand-in-hand with trusts and therefore numerous ways a Will can be thrown into ambiguity all too easily that are far too complicated to go into in more detail here.

In the case of Will Trusts, if the trust has not been constructed in the correct manner and the trust property does not reach the beneficiaries the testator nominated as a result, it is interesting to note that there is a contingency in law for this: a “resulting trust” will be created which will effectively transfer the property concerned over to the testator’s residual estate; this, in turn, will be distributed under the rules of intestacy.

The recent case over the meaning of the United Kingdom in a Will – which was eventually construed in the testator’s favour and in accordance with his intention (as from Marley above) – asserted the fact that it is of vital importance for all Wills to be worded in simple English and not be liable to any potential ambiguity. However, it is reassuring to know that there is a common-sense test to apply if this is ever the case.