Stepfamilies and will drafting

There are a number of lessons to be learned from the recent High Court case of Tish v Olley, where judgment was given on 9 May 2018.  Although not making any significant change to the law, it serves as a reminder of the need for careful consideration of the wording used when drafting a will and how it could be interpreted in the future.  This is particularly important in the increasingly common family set-up where there have been subsequent marriages and competing interests of children, former and current spouses.

Raymond Tish had divorced Amanda in 2007, with ongoing provision for their two children and school fees on top, until they had completed their first degree at university.  Mr Tish also took out a life policy in their favour.

In 2014, Mr Tish made a new will in the knowledge that he was suffering from a progressive disease.  He intended to carry out some estate planning using pilot trusts but failed to complete the project before his death.

The will stated at clause 11 'I give to my daughter…and my son…as shall survive me free of all taxes Maintenance to be paid in relation to the current Court Order as may be amended in time, therefore if maintenance is reduced then the reduced level can be accounted for'.

The dispute arose as at the same time as making the will, Mr Tish applied to the court to reduce his maintenance payments and he stopped making all payments to Amanda and the children as he was no longer able to work.  No agreement was reached prior to Mr Tish's death.

Amanda and her children claimed that the meaning of clause 11 was clear; that the maintenance payments should continue from the estate after death on whatever terms had been set by the family court.  As no amendment to the 2007 provision had been made, that should be upheld.

Louise Tish, the widow, received the residue of the small estate and argued that clause 11 means nothing as the provision order died with Mr Tish.  Her second argument was that the clause was void for uncertainty as the 2007 provision had been put forward by Mr Tish for amendment.  Lastly, as the life policy had paid out to the children and Amanda as agreed in 2007, she argued that this covered the 2007 obligation so clause 11 was not needed.

The judge took the view that the will ought to be interpreted in the way in which the court felt Mr Tish intended, namely to continue provision under the 2007 order unless it had been reduced.

The estate was modest, and the legal fees incurred in sorting out the dispute would have far exceeded the cost of Mr Tish making a will with clearer terms. The case therefore serves as a reminder that wills should be drafted to accurately reflect the wishes and circumstances of the testator and, where possible, that the testator's intentions are explained to the whole family so that such disputes could be discouraged.

For more information, please contact Charlotte Thomas-Collins, Associate in the Private Client team.