The danger area of multiple Wills

It was common practice, particularly before the introduction of the EU Succession regulation, for a client to make multiple Wills if they owned assets in more than one jurisdiction. In these circumstances it is always important to ensure that the provisions of the Wills do not contradict one another, and that one Will does not inadvertently revoke another.

The danger of inadvertent revocation, and its potential consequences, was illustrated in a recent High Court case.

The complicated life and multiple Wills of Harter Singh Sangha (HSS)

HSS died in September 2016. He had had a complex family life (with two different women acknowledged by him as being his wife), he owned substantial assets in the UK and India and had made numerous Wills.

HSS made a Will in 2007 covering all his property in UK and India which he left to his wife Jaswinder. HSS regarded himself as married to Jaswinder at some points and to Daljit at others. His final Will made in 2016 covered his Indian property only and left it to Daljit and three other beneficiaries equally. The 2016 Will stated, “This is my last and final Will and all such previous documents stand cancelled”. If this phrase was held to cancel the 2007 Will, Jaswinder would be disinherited, and the English property would pass on intestacy as the 2016 Will was limited to HSS’s Indian property.

The court cases

Perhaps unsurprisingly the issue ended up in court with an initial decision that the revocation clause revoked all previous wills meaning that the 2016 Will was the only valid Will and the English property would therefore pass on intestacy.

This decision was appealed to the High Court. It was argued by the 2007 Will beneficiaries that the revocation clause only applied to revoke the 2007 will to the extent of property given by the 2016 will, and that the two Wills should co-exist. They argued that the decision at first instance contravened the presumption against intestacy which should be more strongly applied because the intestacy in this case would be complex and would produce results completely different from what HSS wanted.

The beneficiaries of the 2016 Will supported the decision at first instance and contended that even if the decision was wrong the 2007 will was not validly executed.

Although the presumption against intestacy argument was not accepted by the High Court, in construing the words used in the revocation clause the court found that it was wrong to construe the clause as wholly revoking the 2007 Will. This meant that both Wills were valid, the 2007 Will governed the devolution of the English property, and the 2016 Will was valid in respect of the Indian property  The judge said, “It seems to me that where a will is expressed to apply to specific, identified property in a particular jurisdiction, is made in that jurisdiction with the assistance of lawyers established and qualified in that jurisdiction, and has no other connecting factor with any other jurisdiction, the starting point should be an assumption that the will as a whole is only intended to apply to that property in that jurisdiction unless there is some good reason to believe otherwise. In this case there was none.”

As to the due execution of the 2007 Will, one witness was not present when HSS signed the Will but it was agreed that the Will was validly executed as HSS acknowledged the Will before both witnesses.

Why have more than one Will?

Since the introduction of the EU Succession Regulation, which enables a testator to chose which country’s succession laws apply to assets in EU countries, the imperative to have one Will for each jurisdiction has been less compelling as far as EU situs assets are concerned. However, there have been signs that some EU countries are unhappy about what is perceived as the circumvention of their forced heirship rules. For example, France recently introduced legislation enabling EU resident forced heirship beneficiaries to claim compensation from an estate if the adoption of foreign succession rules under the EU Succession Regulation caused them to benefit less from French assets than they would have received under the forced heirship rules.

Taking advice from a lawyer in the applicable jurisdiction may still be the way forward and is inevitably required for assets held outside of the EU. If the English Will includes trusts, it should be remembered that these are legal concepts that are not necessarily recognised in other European countries and this can lead to adverse tax consequences. It may be possible to have one Will but best practice in some jurisdictions may nonetheless require multiple Wills when care should be taken as outlined above.