The meaning of niece and nephew

A recurring theme is the importance of ensuring that a will is properly and clearly drafted. Whilst it is not a legal requirement for a lawyer to draft a will, using a professional to prepare this most important document will minimise the risk of mistakes or misinterpretation.

A recent court case considered the will of a man who had left an estate worth some £600,000 but, unfortunately, a significant portion of this was spent in legal fees as the court decided that the costs of all parties should come out of the estate. The deceased was a widower without children. A clause in his will gave his estate (after costs and other gifts) to 'such all of my nephew's and niece's children'.

At the date of his death, the deceased had two blood nephews and two blood nieces he also had three nephews by marriage and one niece by marriage. A further nephew by marriage had died in 1992 leaving a son.

The issue which the court had to decide is whether his estate should be divided between just the nieces and nephews by blood or whether the children of those nieces and nephews were intended to be included. This made a difference of his state being divided between 7 beneficiaries or 15 beneficiaries.

The deceased and his wife had been married for 46 years. They had no children of their own. On the wife's death she left her entire estate to her husband. They had both made earlier Wills leaving their estates to the children of their nephews and nieces in order to help with their upbringing and education. The general intention was that they were not going to leave anything to the nieces and nephews directly because the couple considered that they were able to look after themselves.

The deceased made his final will only eight months after his wife's death. The court acknowledged the grammatical errors in the will. The court was prepared to look at the background circumstances and held that it was unlikely that the deceased would have wished to disinherit his wife's family so soon after her death and thus the court held that the estate should be divided between 15 beneficiaries.

Interestingly, the will was drafted by a professional organisation but his instructions were taken by telephone. Details of his prior will were not taken nor was there a conversation about the background situation or the family tree. The will contained grammatical and punctuation errors and did not name intended recipients of the gifts.

There is no doubt that it is more difficult to see a professional at a face-to-face meeting at the moment. However, the case illustrates the importance of clear and detailed instructions being taken in relation to the background and beneficiaries when drafting a will.

To discuss this or any other will related matter, contact us.

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