We have all, at one time or another, walked away from an argument and all too late thought of the crushing blow we should have delivered; a comeback there would have been no coming back from. If only we had said it at the time, we would have flicked our hair at our adversary (reduced to a gibbering wreck), turned on our heel, and spent the day bathing in our victory at the War of the Words.
Most of us think of that most lethal rebuttal while still seething slightly from the heat of the argument: later in the shower, having dinner or getting ready for bed. It will probably never graduate from the recesses of our mind and actually be articulated.
But some want to see that their revenge is served truly ice cold. What better way, then, than to leave that parting shot in your Will? It is a stroke of genius, surely; not only will your enemy have no right of reply, but the whole world (Wills are public documents in England and Wales) will bear witness to you having had the final word.
In eighteenth century France, the Marquis d’Aligre became a pioneer of the testamentary takedown. His Will read: ‘to my wife I leave her lover, and the knowledge that I was not the fool she thought me; to my son I leave the pleasure of earning a living. For twenty years he thought the pleasure was mine.’ Ouch.
Napoleon Bonaparte followed suit shortly thereafter. Although he had only good words to say of his wife ‘I retain her to my last moment, the most tender sentiments’, he was less complimentary of the English whom he anticipated would be responsible should he die: ‘I die prematurely, assassinated by the English oligarchy and its assassin. The English nation will not be slow in avenging me.’ Ultimately it was of course the hepatitis, and not the English, which saw to his demise.
The earliest example I have found in English law is from 1825, some four years after Napoleon’s death. In the case of Curtis v Curtis [1825] 162 ER 393, Mr Curtis left a Will in which he flouted his wife and bequeathed his entire Estate to his sister instead. In the Will itself he justified disinheriting his wife as being ‘a consequence of [her] cruel and murderous conduct, in this illness, as well as in past instances.’ On an application made by Mrs Curtis, the Court agreed to ‘strike out that extraneous part [of the Will], so injurious to her character—for which there was said to be not the slightest foundation.’
In Re the Estate of Robert White [1914] P 153, Mr White demonstrated similar antipathy towards his own wife: ‘he stated in his Will that he left nothing whatsoever to his wife (naming her and giving the name and address of her father), for reasons which he proceeded to give and which, while reflecting in no way on her chastity, were said to be scandalous and defamatory and would be painful to her and derogatory to her character if included in the probate.’ Mrs White’s counsel, acting for her in the application to have the words removed from the Will, was so offended by the words written by Mr White in his Will, he refused to read them in open Court.
In the Scottish case of B’s Executor v Keeper of the Registers and Deeds of Scotland [1935] SC 745, one (anonymous) testatrix left one farthing each to several of her relatives ‘as a reward for their mean scheming for years.’ She doubled down on one particular relative whom she called ‘that dangerous, intriguing female, that arch schemer! She wanted to compel me to buy her old hats at a £1 each.’
Why should a scorned testator limit themselves to levelling posthumous indiscretions at family members? In Re the Estate of Robert Myles Howard [1916] P 47, Mr Howard was a soldier serving in World War I when he wrote a letter (which would ultimately constitute his Will, the formalities for creating a Will being relaxed in the case of serving members of the armed forces) to his wife’s father. In the letter, he apparently expressed his love for his wife and left her various of his possessions. When probated, however, the Will was only reproduced in part, the military authorities having ‘expressed the view that it was undesirable to publish the whole of the letter.’ It is unknown precisely what Mr Howard wrote in his letter which caused the military authorities to object so vehemently, but whatever it was the presiding Bagrave Deane J. concluded that it should be ‘ignored’ and that ‘the ordinary practice cannot be allowed to prevail over the exigencies of the public service in time of war.’
The above are some of the more interesting examples I have been able to source. For the reasons I explain in more detail below, the public will never become privy to the majority of offensive, libellous or even blasphemous statements contained in Wills.
A testator is well within their rights to elaborate in their Will on why they have structured their legacy in such a way. ‘I leave £10,000 to my son, so that he may have an income of his own’ would probably be just fine. It is settled law, however, that a testator may not ‘use his Will as a vehicle for slander’ (Re Hall’s Estate [1943] 2 All ER 159). ‘I leave £10,000 to my son, because I’m sick of him mooching off his girlfriend’ would be less fine.
On the appropriate application having been made, the Court will exclude the offending words from the copy of the Will which enters the public domain. In fact, if there is no doubt about the words being defamatory or blasphemous, the Registrar may actually refuse to probate the Will until the application has been made to have those words removed.
No one has ever sued an Executor for offensive or libellous words contained in a Will. In fact, they are prohibited from doing so at law. Notwithstanding the general rule about rights of action surviving death, and subsisting instead in a person’s Executors (whether for the benefit, or to the detriment, of the Estate), the rule specifically precludes defamation claims (s. 1 (1) Law Reform (Miscellaneous Provisions) Act 1934). Defamation claims therefore die with the deceased.
However tempting it may be, therefore, to tell your spouse, neighbour or former boss what you really thought of them (or their desire for you to buy their used headgear at a premium) in your Will, your words are unlikely to ever see the light of day. Instead, your Executors will be burdened with making a costly and time-consuming application to the Court to have the words expunged.
I will stop short of telling you to get it off your chest now, while you can. But I will say speak now, or forever hold your peace.
