It is important to make sure that your will both reflects your current wishes as regards the disposal of your property and is correctly drafted.
If a will no longer fulfils its intended purpose, the testator can revoke it: it is not necessary to make a new will. However, if a new will is not made or an invalid will is drawn up, the effect will be that the testator dies intestate and his or her property will be distributed according to the intestacy laws.
Recently, the court had to consider what to do with the estate of a nun. She had made a will and later revoked it. She left a new will which revoked her earlier one and stated that if she were to die before making a further will, she wished to pass her entire estate to the Diocese of Westminster to 'hold on trust for the black community' of four London boroughs. The bequest as stated did not specify exactly what it was that she intended be done with the gift and it was considered that the terms of the document might not be specific enough to be valid. If this were the case, the will would fail.
The questions before the court were:
- did the woman die intestate?
- if not, on what basis did the Diocese hold the funds?
In the court's view, there was no intestacy. The estate passed to the Diocese. The courts will always attempt to uphold a testamentary gift to the extent permitted by law and the law permits a gift to a community, even if no precise purpose is specified. In such cases, the gift is construed to be held specifically for charitable purposes. Accordingly, the Diocese received the funds on this basis.
"Had the new will's bequest failed," says Shelley Collingbourne, "the estate would have been distributed according to the intestacy rules, as if there had been no will at all. Had that been the case, what is certain is that the charitable aims which the testator wished to pursue would have been frustrated altogether."
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