Tulbut v Davey 2018 EWHC 730 (Ch)- Bright ideas; poor execution.

Article

01 October, 2018

Summary

Confusion, frustrations and family fallouts were the headlining events caused by the recent case of Tulbut v Davey involving a dispute over a homemade Will. This case further emphasises the importance of correct and accurate drafting of Wills and supporting documents.

On 4th April 2013, Mrs Wippell ("the Deceased") died leaving a self-made Will, a Letter of Wishes and a document labelled "Notes", all dated 17th March 2013. The Will appointed four friends as executors. Three of them received cash legacies: £100,000 for Mrs Tulbut, £10,000 for Mrs Moran and £5,000 for Mrs Davey.

The remainder was to be used to set up a new charity called the 'Jepson-Hearn Charity Trust' ("the Charity"). The Charity would benefit "people with severe facial disfigurement", which the Deceased herself had suffered following an attack aged 24. The Charity was to be run in accordance with the Letter of Wishes.

A dispute arose between Mrs Davey and the other Executors over the Letter of Wishes left by the Deceased. The Letter of Wishes set out how the Charity was to be run, and expressed that in addition to the cash legacies, Mrs Davey "may receive from the trust fund or charity when she is widowed and not before £95,000 if there are sufficient funds". It also provided funds to be advanced in the event of a divorce, on the condition that they would be refunded if Mrs Davey remarried her (ex) husband.

A further document entitled "my notes" also existed. It gave instructions as to how certain properties were to be dealt with and stated that Mrs Davey's husband was not to be told of the £95,000 bequest.

The wishes were expressed outside of the Will as the Deceased desired for them not to be made public or otherwise come to the attention of Mrs Davey's husband.

The court was asked to:

  • Determine the proper construction of the Will. This included whether the Will incorporated the Letter of Wishes and/ or the "Notes", and therefore if the terms set out in those additional documents were enforceable.
  • Give directions as to the distribution of the residuary Estate.
  • An order removing Mrs Davey as Executrix.

Judge Russen QC endorsed the principles regarding accompanying documents to wills as becoming binding where:

  1. The unexecuted document already exists at the time of execution of the will;
  2. There is reference in the will to that document existing;
  3. That the document is described in a way that leaves no doubt to the fact that it is the document referred to.

Based on these principles, the court found that the Letter of Wishes was incorporated into the Will but the "Notes" were not. However, the 'gift' of £95,000 to Mrs Davey was not an enforceable bequest. Mrs Davey's actions were also considered by the Court to have "obstructed the proper administration of the estate", and the Court ordered that she be removed as an Executrix.

Considerations

  1. Accuracy in drafting Wills and supporting documents:

    An improperly drafted Will, Letter of Wishes or supporting document can cause unintended difficulties and stress for the executors who are quite often friends or family of the Deceased.

  2. The importance of seeking professional advice when looking to create a charity:

The judgement describes the difficulties faced by the Executors in setting up the Charity. Those intending to create a charitable legacy are advised to do so in their lifetime rather than by their will. This ensures that the requirements of the Charity Commission are met and avoids potential stress for their Executors.

  1. The need to carefully consider the appointment of Executors:

This is especially important when leaving gifts that are contingent or held on trust. In this case the Deceased clearly had what she thought were her friend's best wishes at heart, however, it resulted in a stressful dispute for all those involved.

  1. Careful drafting of a 'Letter of Wishes':

The concept of these documents is that they are not binding and therefore not to be construed as testamentary dispositions. In this case, the court found that the language of the letter was of a more mandatory style as opposed to permissive.

For instance, "what the trustees can and cannot do" and "the trustees must be unanimous and in accordance with my letter of wishes" was considered as a more mandatory style rather than permissive allowing the trustees discretion.

The more compulsory tone supported incorporation of the Letter of Wishes into the Will.

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