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Insights & Resources

The Advantages Of Thinking Ahead

Recent experience has demonstrated the importance of clarity and precision in the drafting of wills. Even more importantly, it has shown the importance of making accommodation for any possible eventuality, to protect the interests of beneficiaries, and give the testator the peace of mind of knowing that their wishes are being met. A will was drafted some years ago, leaving a gift of a portion of farmland to one adult child of the testator, with the balance of the farm to be divided between the two adult children. The gift was expressed in the will to be effected by way of subdivision of the farm.

Unfortunately, at the time at which the will was drafted, subdivision of the property was not permissible under the town planning regulations. That position remained unchanged at the date of death of the testator some six years later. This is a fact of which the draftsman of the will ought to have been aware at the time that it was drafted. Perhaps the greatest source of difficulty, however, was the fact that the testator made no alternative provision in the will, in the event that the subdivision was not possible.

The consequence of this failure was that, after over a year of negotiations, and the expenditure of a substantial sum on legal costs, the gift of land failed. The total value of the land was split equally between the two residual beneficiaries. As a result of a refusal to compromise, one of the siblings was able to exploit the absence of any alternative provision, in order to secure a windfall from the estate.

Some very simple, yet vitally important lessons can be taken from this unfortunate case. First and foremost, it is essential for a testator to know what they are seeking to achieve in the will, and to turn their minds to the question of whether that can actually be achieved. Perhaps more importantly, it is essential to remember that a will is a document which may not become operative for years. Consequently, it is important to consider any possible changes in the law, and how that may affect the gifts contained in the will.

Finally, the testator must decide on alternatives. It is important for anyone making a will to ask: “If I cannot dispose of my assets this way, what other options am I willing to accept?” The purpose of a will is to allow the owner of assets to retain control over their distribution. If the testator’s gift fails, it takes the control of disposal of their assets out of the hands of the testator.

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