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3 May 2018 | Comment | Article by Roman Kubiak TEP

‘Sense and Sensibility’ will writing

The National Archives are showcasing Jane Austen’s will in its on-site museum to mark last year’s 200th anniversary of Austen’s death.  Once a grant of probate has been issued a will becomes a public document.

Austen’s will reads:

‘I Jane Austen of the Parish of Chawton do by this my last Will & Testament give and bequeath to my dearest Sister Cassandra Elizth everything of which I may die possessed, or which may be hereafter due to me, subject to the payment of my Funeral expences , & to a Legacy of £50. to my Brother Henry, & £50. to Mde Bigeon–which I request may be paid as soon as convenient. And I appoint my said dear Sister the executrix of this my last Will & Testament.’

At first glance, it is a simple, straightforward will. She appoints her sister Cassandra as executrix, leaves two legacies, makes provision for the payment of funeral expenses and leaves everything else to Cassandra. It was also only signed by Austen, with no witnesses, just three months before her death.

Many people often state they want a “simple will”, but is there such a thing? If Austen had written her will today, there would be many things to note.

  1. Austen appointed her sister as a sole executrix and sole beneficiary of her residuary estate. What if her sister, Cassandra had died before her? The rules of intestacy  would determine who would receive her estate. Who would administer the estate if Cassandra had died before her? This would be subject to the order of priority, set out in rule 22 of the Non-Contentious Probate Rules 1987. Replacement executors and substitute beneficiaries are important to consider when writing your will.
  2. There are no administrative powers in the will. These administration powers provide the trustee with the legal authority to carry out the management of the estate. How would her sister be able to administer her estate effectively without the relevant provisions? A regulated will writer would ensure that the statutory formalities are followed to allow the efficient administration of the estate.
  3. Jane Austen’s will had no witnesses. According to the National Archives, as the will had no witnesses, two friends had to swear in a written statement that they had known Jane Austen for years and recognised her handwriting. Section 9 of the Wills Act 1837 states that “No will shall be valid unless—(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and (b) it appears that the testator intended by his signature to give effect to the will; and (c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time. In light of this, Austen’s will, would not be valid today.

A well written will which follows the statutory formalities, and one which is properly executed, will allow your estate to be distributed in accordance with your wishes. Homemade wills often lead to contentious issues arising and it is sensible to consider legal advice and guidance from a regulated professional such as a solicitor, when writing your will.

Our Tax, Trusts and Estates Department can provide advice on all aspects wills.

Author bio

Roman Kubiak TEP


Roman Kubiak is a Partner and Head of the market leading Private Wealth Disputes team.

He advises across the whole spectrum of private wealth disputes, with a particular focus on high value, complex and cross-border disputes including: trust disputes, breach of trust claims and applications to remove trustees; will disputes, particularly those with an international element; claims under the Inheritance (Provision for Family and Dependants) Act 1975; and claims for equitable relief under proprietary estoppel, constructive trusts and resulting trusts.

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