Where there is a will, there is a way – Wills/Intestate/Estate Planning

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We all know that the Isle of Man and the Channel Islands are not part of the UK. However, as barrister Chris Brooks explains, in a recent case, the English Court of Appeal found a way to read a will giving “British assets so he included assets in the Channel Islands in the donation. Although the case concerns Jersey, the Isle of Man would be in the same situation as it is also outside the UK. Here Chris examines the rationale and implications.

Mr Rossiter was domiciled in Russia but he made an English will with an English lawyer. He mentioned to the solicitor that he intended to deal with both property in Cheshire and a bank account in Jersey. Unfortunately, this was not reflected in the wording of the will which referred to “British assets”.

After his death, a dispute arose over whether the will was meant to include the bank account in Jersey.

Both sides have agreed that UK means Great Britain and Northern Ireland, but does not include the Channel Islands.

Thus, if the words of the will were interpreted literally, the will would not dispose of Jersey’s bank account. No Jersey will existed, so Mr Rossiter would not have a will governing his Jersey assets. When a person leaves no will, intestacy laws apply. These generally provide for an arbitrary distribution among close family members but do not take into account the intentions of the deceased.

On the other hand, people who would have benefited from the will argued that the deceased wanted to include Jersey’s bank account in the will.

Fortunately for them, the law agrees that “the meaning of words cannot be determined independently of their context”, as Lord Justice Steyn said in a 1995 case. This has been the case for a long time. An early example of this is an 1887 case involving an insurance policy paid on
“any bodily injury caused by an external accident, occurring in the United Kingdom or on the European continent.” Unfortunately, the insured accidentally drowned in Jersey. Technically, he was therefore neither in the United Kingdom nor on the European continent. However, the Court ruled that Jersey was supposed to meet the terms of the policy and that his estate should be paid.

Fortunately, courts have the power to review the circumstances surrounding a will, including proof of the testator’s true intentions, when the wording of a will is ambiguous. When a will is poorly worded and does not fulfill the testator’s intentions due to a clerical error or a lack of understanding of the instructions, he may order that the will be rectified to reflect the testator’s true intentions. This power was even used in one case to rectify an error that occurred when husband and wife signed each other’s wills by mistake at their lawyers. The Supreme Court acknowledged that this was a clerical error.

Fortunately for the intended beneficiaries of Mr Rossiter’s Jersey bank account, the Court agreed that his will was intended to include the Jersey assets within the definition of UK assets and they got their inheritance.

They would no doubt have preferred to do so without a considerable legal battle and although mistakes can ultimately be rectified, the best advice is to have your will drawn up by a professional and be absolutely sure that there are no confusion between you and your attorney as to what specific words mean. Care and precision are required in the drafting and execution of wills and it is worth spending time to ensure that your affairs are in order.

Attorney Chris Brooks is head of dispute resolution at Simcocks Advocates.

Partington vs. Rossiter
[2022] Ch.43

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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