Canada: "Impenetrable (…) Gobbledegook": Knowing And Approving Of The Contents Of Your Will

The English case of Franks v. Sinclair & Ors1 serves as a not-so-friendly reminder of what can go wrong when lawyers draft wills that use complex legal language.

In this case the deceased, Mrs. Franks, had executed and revoked a number of wills. Of particular importance, she had executed a will in 1992 under which one of her grandsons was to inherit the entire residue of her estate. She then executed another will in 1994, instead naming her son and daughter as equal residuary beneficiaries. These were Mrs. Franks' last two wills before she died in 2004.

The son sought to have the 1994 Will held to be Mrs. Franks' valid and final will. The grandson, among others, opposed this result and sought to have the 1992 Will found to be Mrs. Franks' valid will. The grandson argued that Mrs. Franks did not know or approve of the contents of the 1994 Will.

When a will is properly executed by a person who is fully capable, it is presumed that the will-maker knew and approved of the contents of the will. However, in suspicious circumstances, it is up to the person seeking to prove the will to establish that the will-maker knew and approved of the contents of the will. The following suspicious circumstances were identified in this case:

  1. the son was a lawyer and had drafted the 1994 Will himself;
  2. Mrs. Franks had a tenuous relationship with her son, whereas she had a very close bond with her grandson; and
  3. Mrs. Franks' numerous previous wills indicated a longstanding intention to provide little or nothing for her son.

In arguing that the 1994 Will was valid, the son relied heavily on the fact that he had read the 1994 Will out loud, word for word, to Mrs. Franks. The Court therefore looked to the wording of the 1994 Will to determine whether Mrs. Franks could have understood it by having it read to her.

The Court particularly scrutinized clause 8 in the 1994 Will, as it significantly altered the 1992 Will as to the distribution of Mrs. Franks' estate. Clause 8 read as follows:

I give devise and bequeath all the remainder of my property whatsoever and wheresoever both real and personal not hereby or otherwise disposed of by me unto my Trustees upon trust to sell call in and convert into money all such parts of the same as shall not consist of money but so that my Trustees shall have full power to postpone such sale calling in and conversion for so long as they shall in their absolute discretion think fit without being liable for loss and after payment thereout of my debts funeral and testamentary expenses to stand possessed of the same (hereinafter called "my residuary estate") UPON TRUST for such of them my child or children as shall be living at my death and if more than one in equal shares absolutely PROVIDED THAT if any such child or children of mine shall predecease me leaving issue living at my death and who attain the age of eighteen years such issue shall take and if more than one equally the share of my residuary estate which such child or children of mine would have taken had he she or they survived me.

Given the complexity of the language, and despite having read the 1994 Will out loud to Mrs. Franks word for word, the Court found that clause 8 required explanation and that reading it to Mrs. Franks was insufficient. The Court found it very unlikely that Mrs. Franks would have understood clause 8, noting "it is expressed in the customary technical language of wills, which most lay people will find impenetrable and many may consider to be gobbledegook" (para 65).

The Court concluded that the 1994 Will was not valid because the son failed to prove that Mrs. Franks knew and approved of its contents.

Sometimes complex legal language is necessary to ensure that a will meets the needs of the will-maker. However, because the way your will is drafted can have significant consequences on how your estate is distributed on death, it is critical that you fully understand your will and approve of what it says.

If you need help drafting your will or any other estate planning documents, one of the lawyers in our Wills, Estates + Trusts Practice Group would be pleased to help (and ensure that you understand your documents).


1 [2006] EWHC 3365 (Ch)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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