As will drafters, we must ensure that gifts are not drafted in a vague manner and that it is certain who the beneficiary of that gift is and what the subject matter of the gift is. If it is uncertain, court proceedings may be required to determine what the Testator intended and ultimately it could lead to a gift failing due to uncertainty. Drafting a gift in an uncertain manner could therefore leave us open to claims that the will has been drafted negligently.
A gift may fail due to uncertainty either due to uncertainty of the subject matter or uncertainty of object.
Trusts have their own rules regarding certainty that are not considered here, but there is some overlap between the two.
Uncertainty of Subject Matter
A gift will fail due to uncertainty where it is not possible to ascertain what the subject matter of the gift is. For example, a gift of ‘the bulk of my estate’ or ‘the majority of my estate’ would fail for uncertainty of subject matter as it would not be possible to work exactly how much that beneficiary should receive.
A broad gift of ‘my Investments’ is often requested. The meaning of ‘Investments’ can vary from person to person. Some people may consider their property, artwork, or even cars as investments. For others, it may only mean financial products that they own. We recommend that more specific wording is used, such as specifically defining financial products that they own or stating that the gift will only cover investments held with a certain provider.
Where multiple similar items are being gifted these should be differentiated from each other sufficiently to ensure the gift it is not uncertain who is receiving what item. This usually arises with gifts of jewellery or watches. If items have some type of unique serial number, these could be referred to. Alternatively, the material the item is made from, carat or stone could be referred to.
Uncertainty of Object
A gift will fail due to uncertainty of object if it cannot be ascertained who the beneficiary/beneficiaries of the gift should be.
As a general rule, a charitable gift will not fail for uncertainty of object. If the testator has shown a general charitable intention with the gift, the gift will not fail if it cannot be ascertained what objects were the intended beneficiaries. The exception to this general rule however only applies if the gift is exclusively charitable. As an example, in the case Chichester Diocesan Fund and Board of Finance v Simpson a gift ‘for such charitable institution or institutions or other charitable or benevolent object or objects in England’ was held as not exclusively charitable as the executors could potentially pass to an object that was ‘benevolent’ but not necessarily charitable.
Gifts to ‘my family’ are often considered for a calamity clause. This would fail due to uncertainty, as it would not be possible to determine exactly how close a blood relative a person has to be to be considered as family. Clients should consider more specific wording such as aunts, uncles, nieces, nephews or cousins.
Similarly, a gift to ‘my friends’ would also fail due to uncertainty as it is impossible to determine exactly who a friend is. If a client wishes to benefit friends in their Will, these friends would need to be specifically named.
Care must be taken using the term ‘partner’ without specifically naming who that person is. Partner, unlike spouse or civil partner, lacks a legal definition. A gift just using the relationship of spouse or civil partner, for example a gift to ‘the spouses or civil partners of my children’ is perfectly clear. Including partners in that gift could however be unclear. Unmarried partners of the testator or any person should be specifically named and should not be referred to just by their relationship.