Interaction between wills and mistakes

Trusts Discussion
1

The deceased was a retired founder and chairman of a quoted company. Owned property in France, UK and USA in a state which has forced heirship laws. UK resident and domiciled. Made a will in noughties which included an option for his son (who lives in the USA property) to buy the US property at the original cost. Executors have to offer him the option to buy which he has to accept within a limited period. Completion takes place when the son receives his share of residue. A daughter is the executor together with a nephew.
Deceased made a new will in 2015. prepared by a large firm who offer a will writing service to banks. Will revokes all previous dispositions except any relating to US and French property. Will states that two amounts given to daughters should be brought back into hotchpot. The amounts and the underlying facts are wholly incorrect. The will goes on to state that he has already made provision for his son to receive the US property “absolutely” and that the value of the property shall be brought into hotchpot. Will then goes on to leave residuary estate into a life interest for surviving spouse (who is not the mother of his children) and then divided estate between both sets of children.
Issues appear to be:-
(i) the 2007 will is valid re the US property and a limited grant taken out in England and Wales with a view to applying for probate in the US and then issuing option notice?
(ii) are the mistakes re the amount and circumstances of gift to daughter and loan to daughter repaid) and the fact the testator thought he had left US property to his son absolutely in an earlier will sufficient to potentially render the will invalid due to mistake?
(iii) Is there a conflict between the two wills? if the son does not have to complete the purchase until he receives his share of residue, presumably the continued expense of running the US property come out of the estate and residue cannot be ascertained until the sale of the property is complete. As the son’s receipt of residue is conditional on his stepmother dying does this mean that the stepmother will never benefit from the life interest in residue? If so, then, reading the wills side by side the latter will cannot take effect.
Or am I missing something obvious?

Michael McCabe
Heath Square Private Client Limited

2

An obvious initial question, looking at the conflicts, is …did the testator have capacity to make the new will? What are the terms of the US will and are they relevant?

Why was the 2007 (UK) Will not examined when making the new will to avoid said conflicts arising. Seems like possible negligent will drafting.

There appears to be a conflict between the two wills re the dispositions hence possibly a capacity issue or a negligence issue. The will leaves the US property to son absolutely, but if the State forced heirship rules apply, then the wife who lives in the property (?) will inherit a third (?) and the son cannot take title absolutely.

The court’s statutory power to rectify a will where it fails to carry out the testator’s intentions due to a clerical error or a failure of the will writer to understand the testator’s wishes may be a solution.

Other than these initial surface thoughts I await the comments of those who may take a more in depth view.

Andre Davidson
Finantium

3

On your first issue, the English court will apply the lex situs to determine succession to immovable property. If the 2007 will purports to dispose of the US property in a manner incompatible with state law (and/or the will is not valid under state law), then it may not matter what the will says.

On your second issue, mistake on its own would not normally render a will invalid. But it might point towards capacity issues or a failure to understand the testator’s instructions. As Andre says, some mistakes might point towards rectification. On the other hand, is this a case of mistake, or is there a dispute as to the underlying facts.

On the third issue, the words of the will are crucial. You have used the word “receives” in relation to the son’s residuary interest, but if the words in the will are different, then it could be that it is enough that the son’s remainder interest vests in interest rather than possession. Similarly, the words of the hotchpot provisions will be important in working out whether anything is actually caught by them.

Josh Lewison
Radcliffe Chambers