Thousands lost during 'last wishes' court case

Monday 03 June 2019

A woman who told her lawyer that she wanted to change her will in favour of a loyal niece died before she could give legal effect to her final wishes, the Royal Court has ruled.

In an unusual case, Voisins - the firm of lawyers responsible for distributing the estate of the late Mrs Joan Evelyn Webb - brought a representation to the Royal Court asking for directions on how to deal with a conflict between Mrs Webb’s will and a verbal statement she made to her lawyer about her last wishes.

The case is believed to be the first of its kind in Jersey regarding the legality of a declaration about a will made orally, rather than in writing.

While the Court found that Mrs Webb's verbal expression of her wishes was acceptable, it concluded that they had not officially been brought into effect ahead of her death.

Pictured: The case was heard in the Royal Court.

The cost of bringing the matter to Court amounts to more than a fifth of the estate, leading Commissioner Julian Clyde-Smith to comment: “The ensuing litigation has no doubt given rise to some distress on the part of both [Mrs Webb's nephew and niece] in circumstances where giving legal effect to Mrs Webb’s intentions would have been so simple to achieve."

The Court heard that Mrs Webb originally intended to give the residue of her estate – some £87,000 – jointly to her niece and her nephew, but that she had changed her mind by 30 November 2016 when she arranged a meeting with her lawyer, Advocate Richard Falle at Silver Springs Care Home.

At that meeting, she told him that she wished to reward the loyalty and support of her niece by giving her the nephew’s share, along with the half-share originally set out in her will. However, Mrs Webb died unexpectedly six weeks later before any legal documentation had been prepared to formalise the position.

All that remained to confirm her change of plan was the recollection of her lawyer, supported by handwritten notes which he made at the time of the meeting.

Giving the Court’s judgment, Commissioner Julian Clyde-Smith, sitting with Jurats Jerry Ramsden and Elizabeth Dulake, said that, although the Court found that Mrs Webb had given clear instructions about wanting her niece to benefit further from her will, she had failed to revoke the relevant part of the will affecting her nephew’s bequest.

Pictured: Hearing the case cost more than a fifth of the estate in question, the Royal Court Commissioner mused.

“The unfortunate consequence of our finding,” said Commissioner Clyde-Smith, “is that Mrs Webb’s intention that [her niece] should receive the whole of the residue of her estate has not been put into legal effect, an outcome we regret. There was no act of revocation and the will stands. We will therefore direct Voisin Executors to administer the will in accordance with its terms”. 

In his sworn statement, Advocate Falle had set out his recollection of the meeting which took place six weeks before his client’s death.

“It then emerged that Joan’s principal concern that day, was not in relation to her chattels but to give me specific instruction about the residue of her estate which she said would now go to [her niece] alone. She explained that much had changed since making her will in 2008.  She was particularly grateful to [her niece] and her husband for all that they had done for her in recent years. In contrast, it seemed her feelings towards [her nephew] had cooled…She determined in consequence to revoke the gift of residue previously made in [his] favour”, he said.

Advocate Falle recalled that he had made a brief handwritten note which he subsequently followed up with a second note made in his office as a contemporaneous record of the conversation.

“It was clear to me,” he said, “that Joan had unequivocally revoked the gift to [her nephew] and in consequence that no further act on her part was required to give her revocation legal effect.”

Appearing for Mrs Webb’s niece, Advocate James Turnbull argued that a reference to revocation in one of Advocate Falle’s notes was sufficient legally to constitute a record of her formal revocation of part of her will, leaving [her niece] as the only ‘surviving’ beneficiary.

But Advocate Ashley Hall, for Voisins, submitted that there had been no codicil to the will to give formal effect to the revocation of any part of the will and that, in the absence of such a formal document, the original terms of the bequest should apply.

The Royal Court was not free effectively to re-draw Mrs Webb’s will itself, he submitted.

The Court agreed.