Why clear language is crucial when drafting a Will

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 could not have understood the Will he had signed but had always been too proud to tell others about 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 find that this increased complexity leads 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. 

"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 adequately 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. 

Kevin Horn, Partner and Solicitor in Private Client, 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 provisions 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 4th 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 the 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.  

Kevin Horn 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. 

In conclusion, the Grizzle family case underscores the necessity of clear, precise language when drafting Wills. As family structures evolve and society changes, it is imperative to ensure that legal documents are unambiguous and inclusive. Clarity in language not only prevents disputes but also respects the evolving identities and relationships of individuals, securing their true intentions for future generations. 

For further help and guidance, please reach out to Kevin Horn and the Private Client team on 01329 288121 or email enquiries@warnergoodman.co.uk.