Getting the language clear in will drafting

Three children have won a share of their father’s £700,000 estate after a hard-fought case that reached the High Court in London.

The siblings took action when their father Kenneth Grizzle died and they found they were excluded from his will. They told the court that he was illiterate and he could not have understood the will he had signed, but had always been too proud to tell others of the problem.

Sharing memories of their father struggling with reading, they claimed he must have disinherited them by mistake when leaving everything to his two children from a later relationship. The judge agreed, and all five half-siblings will now receive an equal share of the estate.

While being illiterate and unable to read the document offers relatively unusual grounds nowadays for disputing a will, the importance of clear language and understanding is a vital consideration when writing a will, if families wish to avoid later challenges. 

Research conducted on behalf of the Society of Trust and Estate Practitioners among members, professionals who advise on asset management and inheritance planning, highlights the change to family structures in recent years, and how this leads to increased disputes. 

They describe a significant shift from traditional married couples towards a complex mix of structures, including cohabitation, same-sex relationships and transgender relationships.  The family model has changed too, with rising divorce rates leading to single parent families, re-marriage leading to ‘blended’ families with children from previous relationships, and the rise in non-biological children. 

The report says that advisers are finding that this increased complexity is leading to conflict and breakdown in family relationships, giving rise to litigation. And, importantly, of those responding, 65% highlighted the problem of old-fashioned or unclear language being used in wills, trusts and deeds opening the door to later challenges. 

Explained private client expert Nathan Hidson of Martin Tolhurst Solicitors in Longfield: “These shifting family structures mean we tend to see more complex relationships, which are more likely to lead to competing interests between family units and different generations.  When relationships break down, the grounds on which a family may have stayed united and supportive of inheritance plans can be broken too.  If the fine detail in a will or trust is not updated, with clear language, through the passage of family changes, this can be a cause for challenge.”

Generally, a will may be challenged because it fails certain grounds for validity, such as lack of mental capacity or not being properly witnessed.  A valid will may also be disputed under the Inheritance (Provision for Family and Dependants) Act 1975, if an individual can demonstrate they were dependent and should have been provided for.

Nathan also added:  “A person making a will must have 'knowledge and approval' of its contents and it’s much easier to show understanding if plain language is used.  And even if plain language is used, a word might mean one thing in a legal or dictionary sense, but another thing in the mind of the person making the will. For example, ‘child’ has quite a narrow definition legally, but someone might think it could include step-children.”    

Another risk area from imprecise language is for those who have changed gender.  The Gender Recognition Act 2004 includes provision for those named as a beneficiary to be recognised as their acquired gender, rather than their sex at birth, where the will was made after 4 April 2005 and the person has been issued with a gender recognition certificate.  

Problems could arise if the will was drafted without specifying the names and grounds for inheritance of all concerned, for example if certain assets were to be shared between ‘sons’ or ‘daughters’ and the transition removes an individual from their intended inheritance. 

Hidson finally added:  “Where the birth name or previous gender is included, this should not affect the validity of the gift to that person, as the legislation has provided for that situation.  Problems may arise if the identity of a beneficiary is not clear. That’s why language is so important.”

The Gender Recognition Act came into effect on 4th April 2005. Before this, a change in gender was not recognised by the law, so an individual would still be treated as their birth sex in any will made before that date. 

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This is not legal advice; it is intended to provide information of general interest about current legal issues.