Taulbut v Davey [2018] EWHC 730 (Ch) – when good intentions are badly executed

The recent case of Taulbut v Davey is the latest example of a homemade Will causing confusion, frustration, and fallout.

On 4 April 2013 Mrs Pauline Wippell (the Deceased) died leaving a self-made Will dated 17 March 2013, along with a Letter of Wishes of the same date and a two page document labelled 'Notes'. The Will appointed four friends as executors. Three received cash legacies: £100,000 for Mrs Taulbut, £10,000 for Mrs Moran, and £5,000 for Mrs Davey. The residue was to be used to set up a new charity on the Deceased's death, the 'Jepson-Hearn Charity Trust' (the Charity), to benefit 'people with severe facial disfigurement'. She had herself suffered such injuries following an attack at age 24.

Contention arose between Mrs Davey and her co-executors, not because of the Will itself but because of the Letter of Wishes. This 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 for funds to be advanced in the event of divorce, on the condition that they be refunded if Mrs Davey remarried her (ex-) husband. These instructions were given outside the Will as the Deceased desired for them not to be made public or otherwise come to the attention of Mrs Davey's husband.

Amongst other things, the Court was asked to determine whether, on proper construction, the Will incorporated the Letter of Wishes and/ or the Notes and made them enforceable. 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; and
3. that the document is described in a way that leaves no doubt to the fact that it is the document referred to.

On the facts 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. Furthermore, Mrs Davey's actions had obstructed the proper administration of the estate and the Court ordered that she be removed as Executor.

What lessons can be learned?

Firstly, the importance of seeking professional advice when seeking 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 lifetime rather than by their Will, ensuring that the requirements of the Charity Commission are met and avoiding potential stress for their executors.

Secondly, the need to carefully consider the appointment of executors. This is especially important when leaving gifts that are contingent or held on trust. Here, the Deceased clearly had what she thought to be her friend's best wishes at heart. The outcome, however, was a lengthy and stressful dispute for all concerned.

Thirdly, the need for care when drafting a 'Letter of Wishes'. The concept of such documents is that they are not binding, and are therefore not to be construed as testamentary dispositions. In this case, the Court found that the language of the letter e.g. "what the trustees can and cannot do" and "the trustees must be unanimous, and in accordance with my letter of wishes" was of a more mandatory style as opposed to permissive (which would use wording such as 'the trustees may' or 'at the trustees' discretion'. This more compulsory tone supported incorporation of the letter into the Will.

Finally, as is always the case with contentious probate cases, this case reminds us that an improperly drafted Will (or incorporated letter) can cause unintended stress and upset to the recently bereaved.