The Law of Unintended Consequences

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We have commented previously on the quite extraordinary recent case of Sangha -v Sangha and Others in relation to how the court dealt with allegations of forgery/fraud in relation to wills.  By way of reminder the case involved six parties, five of whom were defendants, four wills, three children of the deceased, two ‘wives’ and not one but two jurisdictions.

As well as having to deal with issues of forgery/fraud the court also had to wrestle with the issue of how to interpret the wills, in particular in relation to revocation clauses and the extent to which they were effective to cancel out the previous wills or not.

Since the last will, made in India in 2016, only dealt with the deceased’s Indian assets, the question was whether the revocation clause in that will also had the effect of revoking all of the deceased’s three previous wills including one made in England.

Specifically the last will stated “This is my last and final WILL and all other such documents are cancelled” so on one view the wording could not have been clearer.

In terms of interpreting a will, the court is required to decide upon the intention of the will maker having regard to ‘the natural and ordinary meaning of the words used, the overall purpose of the document, any other relevant provisions of the document, the facts known, or assumed, by the testator at the time of execution of the document and common sense’.

The judge said that any party to litigation who wishes to argue that an express revocation clause does not have the effect which would follow from the plain meaning of the words used takes on a heavy burden.

In the event the court decided that there was nothing in the will or the relevant surrounding circumstances to contradict the literal meaning of the clear words of cancellation.  That was despite the fact that in relation to the deceased’s English estate it produced an intestacy in circumstances where the court may at a later date have to go on to consider the status of the deceased’s second marriage entered into at a time when he was still it seems married to his first wife!

This case admirably demonstrates that particularly where there are a number of competing wills or wills which are homemade very careful analysis needs to be undertaken of the effect of the wills especially if assets are held in more than one jurisdiction.

It also undermines the importance in these modern family situations of having wills professionally drafted because it is perhaps unlikely that in making his homemade will in India in 2016 the deceased positively intended to produce an intestacy in relation to his valuable English estate in circumstances where to put it mildly the family relationships were “complicated”.

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The information given here is intended for general information purposes only and should not be taken as legal advice.

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