The Curse of the Home Made Will

Michael Rogers, the executor of the will of Kathleen Mary Rogers sought the directions of the court as to the proper interpretation of the will. Kathleen’s only child Alexandra was 16 when she died. Probate was granted on 14 October 2014. As Alexandra was a minor Michael held the residuary estate for her on trust after administration was completed. When Alexandra turned 18 clarification was sought

The relevant provisions are as follows:

 Residuary Estate

I give the residue of my estate to my daughter Alexandra Rogers Young, wholly. If she / they or their incidental beneficiaries predecease me, I give the residue of my estate to my nieces and nephews, whether in uteri or born in equal shares.

Incidental Beneficiaries

If any of my children do not survive me then that benefit which they would have received shall be divided equally amongst such children of theirs as survive them. If there are no such children, their share shall return the residuary estate.

Trust for Minors

The share of any beneficiary/ies who is/are under the age of 18 years shall be held in trust and be administered by the trustee for the purpose of support, welfare and education until he / she / they reach the age of 25.

If any minor beneficiary/ies should die prior to receiving all their share, then their share shall be held in trust and paid equally amongst their children. If there are no such children, their share shall return to the residuary estate.

(Kathleen made her Will using a Will form and words struck through are marked in strikeout. Words, which have been added by Kathleen in handwriting, have been underlined.)

As I have posted before Courts  construe the language of a will by using the “expressed intention” of the words of the Will maker. Kathleen made her Will using a will kit therefore as it is considered a home made will the court is able to make some allowances. It is only where the language used in the will is ambiguous that evidence of the Will maker’s intention is admissible.

In early 2014 Kathleen was told that she had cancer, and asked Michael to bring a copy of her will to her home; they discussed it for about three hours. Michael submitted, and the court accepted, that Kathleen was clear she wanted her estate to go to Alexandra when she was 25 years of age.

However, the overriding principle applied by the court is that a will is to be construed so as to give effect to the Will maker’s written intentions. The question concerning Michael is whether Alexandra acquires Kathleen’s estate at 18 or 25 years of age.

Alexandra submitted, and the court accepted, that her interest in the estate arose when her mother died notwithstanding Kathleen’s clear intention that the she should not receive the estate until she turned 25. The Will reads that the whole of Kathleen’s estate goes to Alexandra and is postponed only until she reached 18 years of age. Accordingly, she can require the termination of the trust and the transfer of the trust property.

The Court expressed its frustration with dealing with “homemade wills ”, calling them “a curse.” In this case the use of a ‘Will kit’ proved that point. Although Kathleen had a clear intention and the Will is reasonably straight forward the way that it is drafted meant that the parties had to seek directions as to its proper interpretation.

The court believed that if a competent legal practitioner had drafted the Will, this problem would not have arisen and the parties would have been spared a great deal of trouble and expense.

7 Replies to “The Curse of the Home Made Will”

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