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Vague Wording mean wishes are legally unenforceable

Last will and testament

A recent estate dispute has rendered vague wording in a letter of wishes legally unenforceable.

The complex case of Taulbut v Davey [2018] EWHC 730 Ch concerned the estate of the deceased Pauline Wippell whose will had left several bequests and set up charitable trusts. At issue was whether a homemade manuscript letter of wishes had been incorporated into a homemade manuscript will and how to interpret these documents. The parties also pursued rival claims attempting to remove one another as executors.

One of the points at issue was whether Gillian Davey, the Defendant and an executrix, had an interest in establishing that she was entitled to a legacy of £95,000. The wording of the Letter of Wishes on this point was as follows:

“(1) Gillian A Davey may receive from the Trust Fund/Charity when she is widowed and not before £95,000 if there is sufficient funds. In the event of a divorce she may receive £5,000 out of the £95,000 towards costs. The remaining £90,000 or thereabouts will be advanced on the condition that should she co-habit or remarry Malcolm Davey the £90,000 be refunded immediately into the Trust Fund.”

In line with established probate law, it was determined that the Letter of Wishes was indeed incorporated into the Will, as, the court was satisfied that, although it was not formally executed, it: (i) was in existence at the time of execution; (ii) it was referred to in the Will; and there was no doubt that it was what was referred to.

Regarding interpretation of the Letter of Wishes, the court applied the principles of construction of the Supreme Court in Marley v Rawlings [2015] AC 129. The court is concerned to find the intention of the testator by identifying the meaning of the relevant words with the same considerations as would be employed in interpreting a contract (i.e. taking account of the ordinary meaning, the overall purpose of the document, other provisions, the facts known at the time, and common sense but not subjective evidence), with the addendum that where part of a will is meaningless or ambiguous, extrinsic evidence may be used to determine intention.

Mrs Davey’s case was that the provision should be analysed as providing for either: (i) the £95,000 being vested in the Charity to be divested in the event of her widowhood; or (ii) the £95,000 being a contingent legacy, conditional upon widowhood. The Claimants argued that as the language was precatory (“may receive” rather than “shall receive”) meaning it did not indicate a legally binding obligation and could not give rise to an entitlement. Notably, this could be contrasted with the language in the Will itself and a previous will. On Mrs Davey’s case, this did not matter as the Will overall (incorporating the Letter of Wishes) was not precatory in relation to the £95,000, with regular use of mandatory rather than permissive language. The reference to “may receive” concerned timing, not underlying entitlement.

The court considered that it was material that the proviso to any entitlement is clearly stipulated to be conditional upon a sufficiency of funds was material, as Mrs Davey’s case conceded that the Charity would be free to expend funds in the meantime meaning the entitled to the £95,000 would have been inherently precarious. The conceded absence of a recourse against the Charity undermined the idea of there being an enforceable entitlement, as the Letter of Wishes also referred specifically to £95,000 rather than something not exceeding £95,000. This was exacerbated by the inherent ambiguity of what “sufficient funds” actually meant. As such, any divestment to Mrs Davey would effectively have been a gift from the charity.


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