Clarity Is Key – Incorporating A Letter Of Wishes
Reasons to choose Wilson Browne
It can sometimes seem easy to write a Will, after all you just need to put down your wishes on paper and sign it in front of witnesses. Right?
The complex case of the estate of Pauline Wippell is a case in point to prove how wrong this approach can be.
The late Pauline Wippell’s Will left a number of bequests and set up a charitable trust. In Taulbut v Davey, the Executrix Gillian Davey wanted to establish that a homemade manuscript letter of wishes had been incorporated into a homemade manuscript Will. Her reason? She had an interest in establishing that she was entitled to a legacy of £95,000. In the proceedings Taulbut and Davey, both Executors, made counter-claims seeking to remove each other as Executor.
Ultimately in this case the Court found that the vague wording of the letter of wishes written by Pauline Wippell was legally unenforceable.
The Letter of Wishes included the term:
“(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.”
As a matter of law, it was found that the Letter of Wishes was incorporated into the Will. The Court was satisfied that although it was not formally executed, the Letter of Wishes: (a) was in existence at the time of execution; (b) was referred to in the Will; and (c) that there was no doubt that it was what was referred to.
The interpretation of the Letter of Wishes proved more problematic. Referring back to the 2015 case of Marley v Rawlings, the Court identified that it was necessary to find the intention of the Pauline Wippell 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 the use of the wording “may receive” rather than “shall receive” 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. Mrs Davey argued that the reference to “may receive” concerned timing, not underlying entitlement.
The Court considered that it was material that “gift” to Mrs Davey relied upon there being sufficient funds and that the fact that the charity could use the money was also relevant. The result was that the £95,000 might not even be in the Estate at the point when Mrs Davey might inherit.
Ultimately the Letter of Wishes failed for ambiguity – a stark lesson of the importance of properly drafted Wills, Codicils and Letters of Wishes. Clarity is essential in recording wishes to ensure that, long after the testator is gone, anyone reading the document can be sure of what was meant.
In Taulbut v Davey the Will stood without the Letter of Wishes being incorporated and Mrs Davey’s “gift” failed.