The Perils Of Not Having A Properly Drafted Will – Telford V Clark And Others (2025)

One of the worst mistakes from a contentious probate litigator’s view is not having a will in the first place.

This is followed closely by having one so badly drafted, you may as well as not bothered. If you have made the most important decision to make a will, then choosing the right person to write your will is then the second most important consideration.

The case of Telford v Clark and others (2025) highlights what can go wrong

The Facts

This case concerned the estate of Veronica Clark. She died on 11 August 2022 and left a will dated 20 October 2014. Probate was obtained on 30 March 2023, and her nephew was appointed as executor under the will (with power reserved to her brother William).

Veronica was married to Albert. She had no children but 6 siblings, some who survived her and some did not. There was also a plethora of nieces and nephews.

Albert had 9 siblings, again not all of whom survived.

Veronica’s estate was worth just under £500,000, consisting of property, investments and cash in accounts

There were no fewer than 16 Defendants to the claim, although not all took an active part

The relevant terms of the will were:

3. I GIVE the following specific legacies:
(i) to all surviving brothers and sisters of my late husband Albert Edward Clarke 50% of my estate in equal shares
(ii) to all surviving brothers and sisters of myself 50% of my estate in equal shares
(iii) to all my surviving brothers and sisters the proceeds of my saving account held by the Abbey National Bank and in equal shares PROVIDED THAT if any of the forementioned relatives shall predecease me then their share of my estate shall go between their children and in equal shares
4. I GIVE DEVISE AND BEQUEATH all my real and personal estate of whatsoever nature and wheresoever situate not otherwise disposed of by this Will or any Codicil to it (including any property over which I may have a general power of appointment or disposition by will) to my Trustees upon trust to sell call in and convert the same into money with full power in their absolute and uncontrolled discretion to postpone such sale calling in and conversion for so long a period as they shall think fit without being responsible for loss
5. MY TRUSTEES shall hold the net proceeds of such sale calling in and conversion together with my ready money and any property for the time being remaining unconverted upon the following trusts:
(a) Upon trust to pay thereout all my just debts legacies funeral and testamentary
expenses and to any trusts declared earlier and subject thereto
…
12. EVERY PERSON who would otherwise benefit under this my Will but who fails to survive me for thirty clear days shall be treated for the purposes hereof and for the purposes of the devolution of my estate as having predeceased me and my estate and the intermediate income thereof shall devolve accordingly to the intent that no person shall be entitled to any intermediate income from my estate or any part of it if he or she dies within that period or acquire therein or in any part thereof a vested interest (or a vested interest subject to defeasance) before the end of it.

The will raised a number of issues including

• Who was caught by the word ‘surviving’
• What did ‘my estate’ include
• Whether anything fell into the residual estate for distribution

The court was critical of the will drafting and the will drafter, stating that

For a will to give rise to quite so many genuine questions of interpretation is unusual.
This will is drafted badly. This dispute has no doubt caused at least some of the parties
untold anguish, substantial expense and delay, and destroyed family relationships. The
evidence suggests that the will was prepared by an apparently unqualified person holding himself out as a will writer, perhaps for money. This case demonstrates the perils of trying to save expense by using the services of unqualified persons to write wills.

The court construed the will accordingly as to who should have what.

Final Words

Data from the IRN Legal Reports showed that consumers using solicitors for a will was now less than 50% with a growing number opting to do it themselves.

It is true you do not need a solicitor to draft a will, but you need to be careful about will writers who are then not subject to the same stringent regulations and may not have the professional indemnity in place if things go wrong.

A will is one of the most important documents you will make in your life (and beyond) – it will protect the assets you have amassed during your lifetime and ensure that your loved ones are provided for in your absence.

The implications of getting it wrong are costly.

Disputes over wills can be costly, stressful and deeply damaging for families. Our specialist Contentious Probate team advises on will disputes, estate claims and the interpretation of poorly drafted wills.

If you need advice on an existing will or want to ensure your own will is legally sound, contact our Wills & Probate team for expert guidance and peace of mind. Call 0330 822 3451 or request a callback.