A Will is a final statement of how you want your estate to be dealt with once you have passed away. It is not, as some might believe, a final statement of your personal sentiments or a means to have a final comment on your relationships with friends and family.
The decision in Ellaway v Lawson and more recently in Jones v Krawczyk highlight the importance for those making a Will to keep the “dirty laundry” out and understand the damage that can be caused when personal sentiments or references to relationship dynamics are included in their Will.
Ellaway v Lawson involved the deceased dividing her estate equally amongst her two daughters. A clause in the Will provided that one of her daughters would not receive her bequest until she either divorced her husband or he died. If neither of these events took place during the daughter’s life then the gift would go to the Catholic Church.
Jones v Krawczyk involved a clause in the deceased’s Will relating to a beneficiary’s ineligibility to act as trustee of trusts (of which she was the primary beneficiary) until such time as she either divorced her husband or ceased living with him in a bona fide domestic relationship.
The clauses in both Wills were challenged on the basis that they were contrary to public policy because they encouraged the beneficiaries to divorce their husbands. The court did not agree and both cases were dismissed.
In Ellaway v Lawson the court found that the daughter had no obligation to divorce her husband and that because of changing attitudes towards divorce, the public policy issue no longer looms so large in allowing such a clause to be attacked. Similarly, in Jones v Krawczyk the court decided that it was unlikely the clause would lead to divorce and separation and that it was not contrary to public policy.
In Jones v Krawczyk the court considered the likely purpose of the clause was to protect the beneficiary’s inheritance, rather than encourage her to divorce and separate from her husband. The court noted that by the beneficiary having management of the trust property while she remained married to or living with her husband, she might be inclined or persuaded to deal with the trust property in a way which was not in her best interests.
The important lesson to be learnt from these cases is to acknowledge that a Will can become a public document if a grant of probate is required or if the estate becomes the subject of litigation. In such circumstances, a Will’s contents, including any personal comments about family or friends, are available for the public to read. This can heighten personal distress and further deteriorate strained relationships of those left behind.
If you do feel it necessary to record your final personal comments, a more appropriate document is a statement of wishes. A statement of wishes is a non-binding document which can be held with your Will and may be read by only your executors. It may also be kept in an envelope marked, ‘Only to be read if the Will is challenged’.
By taking a considered approach to your estate planning, you reduce the risk of a challenge being made to your Will, delay in the administration process and enriching lawyers at expense to your estate and ultimately your beneficiaries.