Taulbut v Davey [2018] EWHC 730 (Ch) – When Good Intentions Are Badly Executed

The recent case of Taulbut v Davey is the latest example of a homemade Will causing confusion, frustration, and fallout.

On 4 April 2013 Mrs Pauline Wippell (the Deceased) died leaving a self-made Will dated 17 March 2013, along with a Letter of Wishes of the same date and a two page document labelled 'Notes'. The Will appointed four friends as executors. Three received cash legacies: £100,000 for Mrs Taulbut, £10,000 for Mrs Moran, and £5,000 for Mrs Davey. The residue was to be used to set up a new charity on the Deceased's death, the 'Jepson-Hearn Charity Trust' (the Charity), to benefit 'people with severe facial disfigurement'. She had herself suffered such injuries following an attack at age 24.

Contention arose between Mrs Davey and her co-executors, not because of the Will itself but because of the Letter of Wishes. This expressed that in addition to the cash legacies Mrs Davey 'may receive from the trust fund or charity when she is widowed and not before £95,000 if there are sufficient funds'. It also provided for funds to be advanced in the event of divorce, on the condition that they be refunded if Mrs Davey remarried her (ex-) husband. These instructions were given outside the Will as the Deceased desired for them not to be made public or otherwise come to the attention of Mrs Davey's husband.

Amongst other things, the Court was asked to determine whether, on proper construction, the Will incorporated the Letter of Wishes and/ or the Notes and made them enforceable. Judge Russen QC endorsed the principles regarding accompanying documents to Wills as becoming binding where:

the unexecuted document already exists at the time of execution of the Will; there is reference in the Will to that document existing; and that the document is described in a way that leaves no doubt to the fact that it is the document referred to. On the facts the Court found that the Letter of Wishes was incorporated into the Will, but the Notes were not. However, the 'gift' of £95,000 to Mrs Davey was not an enforceable bequest. Furthermore, Mrs Davey's actions had obstructed the proper administration of the estate...