Taulbut v Davey  EWHC 730 (Ch)
HHJ Russen QC (sitting as a Judge of the High Court) recently had to determine the proper construction of a homemade will and accompanying letter of wishes, provide directions in relation to the distribution of a residuary estate and consider cross-applications for the removal of executors and trustees.
Pauline Wippell died on 4 April 2013 leaving a 3-page manuscript homemade will and an accompanying 2-page letter of wishes which were both dated 17 March 2013. She had written both documents in her own handwriting on blank sheets of paper. In summary, subject to various pecuniary legacies Mrs Wippell left her estate to a new charity which was to be called “the Jepson-Hearn Charity Trust” which was intended to benefit “people with severe facial disfigurement”. Mrs Wippell’s maiden surname was Jepson-Hearn and she had herself been a victim of an acid attack by a stalker in her youth. Mrs Wippell appointed the three claimants and the defendant, who were all friends of hers, as executors and appointed two of the claimants and the defendant (together with another friend) as trustees of the charity.
The will contained a pecuniary legacy of £5,000 to the defendant. However, Mrs Wippell also included the following clause in the letter of wishes: “[the defendant] may receive from the trust fund or charity when she is widowed and not before £95,000 if there are 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 result of a falling out between the claimants and the defendant, the court was asked to determine (i) the proper construction of the will and letter of wishes, and in particular whether the letter of wishes was incorporated in the will and if so whether its provisions imposed any legally binding obligations in relation to the £95,000; (ii) whether Mrs Wippell’s residuary estate should be distributed to the Jepson-Hearn Charity Trust, which in the meantime had been registered with the Charity Commission; and (iii) whether the claimants or the defendant should be removed as executors and/or as trustees.
HHJ Russen QC referred to the principles governing the incorporation of unexecuted documents into wills and held that on the facts the issue in dispute was whether or not the letter of wishes had been written before the will was executed, and was therefore a document which was in existence at the time the will was executed. He held that on the balance of probabilities the letter of wishes was in existence at the time the will was executed, and was therefore incorporated, because: (i) both documents bore the same date, which “leaves open the entirely credible scenario that the Deceased prepared the two manuscript documents in one sitting”; (ii) the will expressly referred to the letter of wishes using a definite article; (iii) it did so in the present tense and referred to the letter of wishes as an attachment; and (iv) the letter of wishes was headed “Attachment to my Will dated Sunday 17 March Two Thousand and Thirteen”, which the judge thought “clearly indicates that the Letter of Wishes already existed when she executed the Will and was not, instead, a postscript to which she turned only once she had made the Will earlier that day”.
To decide whether the (incorporated) letter of wishes created any legally binding obligations, in particular in relation to the £95,000 purportedly left to the defendant (in the terms set out above), HHJ Russen QC applied the principles of construction set out by the Supreme Court in Marley v Rawlings  AC 129. He concluded that the relevant provision of the letter of wishes did not create any legally binding obligation because the language of the letter of wishes was precatory (“letter of wishes”; the defendant “may receive”) and could be contrasted with the legacies in the will, including the legacy of £5,000 left to the defendant herself.
Finally, the judge held that the residuary estate should be distributed to the newly-registered charity, and he removed the defendant as executrix and trustee and dismissed her claim to remove the claimants. Having referred to Letterstedt v Broers (1884) 9 App Cas 371 and more recent cases such as Angus v Emmott  WTLR 513 and Kershaw v Micklethwaite  WTLR 413, he explained that “the guiding principle for the court on any application to remove a personal representative under section 50 [of the Administration of Justice Act 1985] must therefore be to look at the particular circumstances giving rise to it by reference to the welfare of the beneficiaries” and that that inquiry “is likely to involve testing whether or not those circumstances have operated to disrupt the due and proper administration of the estate by which their interests are intended to be served and, if so, consideration of the acts or omissions of the respondent representative that are said to have produced that situation”.
He held that whilst the defendant could not be blamed for litigation which involved “genuine issues over the scope and meaning of the Will”, the defendant’s removal was justified in light of her refusal to agree to the residuary estate being distributed to the Jepson-Hearn Charity Trust on the basis that she was not a trustee and her insistence that Mrs Wippell’s property should be sold and the proceeds donated to another charity because she believed the Jepson-Hearn Charity Trust was not financially viable. The judge concluded that the defendant “has, unacceptably in my judgment, put the cart before the horse on both issues when she should have appreciated, as a personal representative of the estate, that there was no place for such an obstacle created by her own personal interest or contention. On Issue 2, and less directly in connection with Issue 3, it appears to me that it is [the defendant], not the Claimants, who has failed to have sufficient regard to the executors’ oath (including the promise to administer the estate) which was made as long ago as June 2014”.
The case illustrates the benefit of obtaining competent legal advice in relation to will drafting and the potential downsides and practical repercussions of homemade wills, particularly where the testator’s intentions are not straightforward and are then purportedly spelt out in some detail by a non-lawyer. It also shows how executors (and other fiduciaries) can ask for the court’s guidance when uncertainty arises in respect of unclear provisions in a will or other trust instrument.
From the perspective of will drafters, the judgment provides some useful guidance on the principles that govern the incorporation of unexecuted documents into wills and a helpful reminder of the need to use clear language when drafting a gift which is intended to be legally enforceable, which may not be straightforward if the gift is intended to be conditional or contingent.
(Author: Edward Hewitt)
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