UK: No Small Matter

Last Updated: 7 September 2015
Article by Caroline Cook

Another poorly drafted will, another legal wrangle for beneficiaries to inherit; what will it take to convince testators to take greater care?

The attention around the estate of Ebenezer Aregbesola and the lawsuit against Barclays for a badly drawn will, highlights the need for caution when being lured by the prospect of a cheap '£100' will.

Mr Aregbesola had used Barclays' £90 will-writing service to deal with his various assets. Under the terms of his will, he gave his half share in his London home to his daughter, Tinuola Aregbesola. The property, however, was owned as joint tenants with his wife and Barclays failed to sever the joint tenancy when they drafted the will.

This meant Mr Aregbesola's share in the property passed by the rule of survivorship to his wife, who was not Tinuola's mother, and could not pass under the will. This means Mrs Aregbesola is legally entitled to the property and can bequeath it as she pleases.

This once again highlights the dangers of a will drafted without proper care and attention, to all the mechanics of ensuring the testator's wishes are effected. For most professional advisers, one of the first questions asked of an individual where joint property is held is, 'How is the property owned - tenancy in common or joint tenancy?'

If it's a joint tenancy, is this going to be in line with how the individual wants their share in the property to pass? To sever a joint tenancy is a simple one page piece of paper which is then registered at the land registry.

Inherently complicated

Examples of other problems practitioners encounter include a will that fails to take account of the testator's instructions as to how inheritance tax is to be paid, where there are exempt and non-exempt residuary beneficiaries.

One case involved clauses referring to a beneficiary who did not even exist; unfortunately in this case, the accruer clause was incorrectly drafted, leaving the reader scratching his head as to how that failed share should be distributed.

In such scenarios the beneficiaries are faced either with the costs of rectification of the will, or with reaching an agreement via a deed of variation. There are also issues with the two year time limit for entering into a deed of variation.

The cases above are examples of a will drafter not really understanding the complexities of drafting a will. Where a testator wishes to benefit both exempt and non-exempt beneficiaries, reference should, immediately be had to the cases of Re Benham and Re Ratcliffe,and what the testator's intention are as to the divisionof funds and payment of inheritance tax.

While consideration of the incidence of inheritance tax where there is a mixture of exempt and non-exempt beneficiaries, accruer clauses and severing the joint tenancy are all run-of-the-mill considerations for the experienced practitioner. Where a will is being done on the cheap, for say £100 or less, than it is likely the will drafter does not have the time or resources to consider all of these questions.

A will is likely to be one of the most important documents you will ever sign, but if drafted incorrectly, it can leave the beneficiaries facing thousands of pounds in legal fees in trying to rectify it.

The final point to take away from the Aregbesola case is that the Financial Ombudsman Service were involved and concluded that Barclays should reach a settlement with Tinuola, which would fairly and reasonably resolve the complaint, taking considerationof the value of the property and the intended gift.

Barclays in response to this said that its will writing division was not regulated and it did not have to adhere to the ombudsman's findings. The ombudsman accepted this was technically correct.

Will writers are not regulated, unlike solicitors, who are all subject to strict regulations by the SRA. This means that should something go wrong, the general public are protected by the solicitor's mandatory insurance and the Law Society compensation fund.

Originally published in Private Client Adviser on 21 August 2015

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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