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Monday 20th May 2024 Alexander Mahdavi 

The dangers of confusing language in a Will

One of the most frequent causes of Will disputes is disagreement about how to correctly interpret what the Will actually means. The recent High Court dispute involving the Will of the late James McKay highlights the dangers of having wording in a Will which is unclear or open to different interpretations.

In that case, the confusion related to whether a group of beneficiaries should receive equal shares or shares of different value. To provide an abbreviated explanation, in the first part of the Will, a list of beneficiaries were given different amounts of money, for example £50,000 to A, £10,000 to B, £20,000 to C, £2,000 to D and E, and so on.

Later in the Will, a large portion of the remaining residuary estate was left to those same beneficiaries who had received cash gifts in the first part of the Will “in accordance with the provisions related to each gift”.

The crux of the dispute was whether those beneficiaries (A,B,C, etc) should each received an equal share of the residuary estate, or a proportional share to reflect that they had received cash gifts of different value in the first part of the Will. Both sides of the dispute had understandable positions: usually the assumption when a gift is left to multiple beneficiaries is that those beneficiaries will share the gift equally, unless there is some contrary wording in the Will. Conversely, the counter-argument was that the words “in accordance with the provisions related to each gift” suggested that the each beneficiary’s share should reflect the fact that they had received different amounts earlier in the Will – in effect that those words meant something, even if it was not clear exactly what.

Whenever there are fairly valid arguments on both sides of a dispute, there is a higher risk that an amicable resolution is difficult to reach, and in this case the parties ended up in the High Court, with all the additional legal costs, stresses, and delays that Court proceedings involve. In this case, the Court’s judgement was only reached nearly two years after the death of the deceased, which is in fact relatively swift for Court proceedings!

In the end, the Court decided that the residuary estate should be divided proportionately between the beneficiaries in accordance with the size of their initial cash gifts. However, the lesson to learn from this case is not the particular judgment the Court reached, but rather that the only reason there had to be a Court case in the first place was the wording of the Will was open to interpretation.

The wording could have easily been made clearer, either by stating that the gifts to A,B,C, etc were to be divided “in equal shares” or alternatively “in proportion to the cash legacies A, B, C, etc have received” earlier in the Will.

The case is a stark reminder that, as the testator (the person whose Will it is) cannot be around to clarify misunderstandings after their death, it is absolutely essential that their Will is absolutely clear in its language about what the terms are, leaving no space for disagreement.

Drafting a Will with a specialist solicitor can reduce the risk of vague or confusing language in a Will, and help avoid the disputes that might arise from such unclear language. While solicitors are sometimes criticised for over-use of ‘legalese’, the primary aims of good Will writing are to be clear, precise, and to accurately reflect the wishes of the testator.

The full judgement can be read here, and for more information please contact Alexander Mahdavi, Head of JPC’s Private Client team, by email amahdavi@jpclaw.co.uk, telephone 0207 625 4424 or connect with him on LinkedIn.


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