Court dubs widow’s will claim “recipe for chaos”

Monday 02 September 2019

The Royal Court has thrown out a widow’s claim for a larger share of her late husband’s estate than she was given in his will, dubbing it a “recipe for chaos”.

In a family dispute involving a deceased’s second wife and the two children of his first marriage, the widow had argued that her late husband had fallen out with the children after he made his will and that she was legally entitled to more of his moveable estate than was set out in the will.

But the Royal Court has rejected the claim, describing it as "an ingenious attempt to circumvent clear statements in principle about how wills are to be construed."

Under the terms of what appeared to be a deceptively simple document, the wife was to receive a third of the estate with the remaining two thirds split equally between the wife and the man's two sons. Consequently, the widow would receive a total of 55.5% of the estate, and the children 44.5%.

Pictured: The Royal Court described the widow's legal efforts as "an ingenious attempt to circumvent clear statements in principle about how wills are to be construed."

However, in documents presented to the Royal Court, the widow argued that the distribution failed to take proper account of the implications of the customary legal principle of 'légitime'.

Under the Wills and Succession Law, a widow and the children of a deceased are each entitled to a third of the moveable estate. The remaining third may be freely disposed of as the person making the will – or the testator - wishes.

Although Counsel for the widow, Advocate Simon Frankel, accepted that the distribution set out in the will was consistent with the minimum entitlement under the légitime principle – because it resulted in both the wife and the children receiving more than their guaranteed one third share - he nonetheless argued that the involvement of the Court was required to determine where the 'free' one third share should go.

He argued that it was not simply a question of looking at the testator's intentions when making his will but his wider intention as to who should receive the disposable portion.

Pictured: Advocate Matthew John Thompson, Master of the Royal Court, heard the case.

To decide this might require external evidence and not simply the will itself. It was claimed that this approach would result in the 'final' third also going to the wife.

Had this been followed, the widow would then have been entitled to two-thirds of the estate, rather than the 55.5% set out in the will, with the children's share being reduced accordingly.

Representing the children, Advocate Howard Sharp argued that for external evidence to be admitted, the will itself had to be ambiguous, but that was clearly not so in this case - the Court therefore had to give effect to the clear terms of the will. Any subsequent intention to change it was irrelevant, he argued.

The case was heard by the Master of the Royal Court, Advocate Matthew Thompson, who decided that it was not appropriate to look beyond a will when the requirements of the 'légitime' principle had been fulfilled and the parties had received more than their minimum entitlement.

Pictured: Advocate Howard Sharp appeared on behalf of the children.

"The difficulty the [widow] faces in this case is that the language of the will is clear and unambiguous. The situation described in her affidavit is therefore one of the testator not meaning what he said. That is not however a basis to depart from the unambiguous terms of the will," the Master said.

He ruled that the children were entitled to their 44.5% share of the residual moveable estate set out in the will with the wife's share remaining at 55.5% .