Reflections on The Gentleman: A Lawyer's Perspective

As a Wills and Probate lawyer, I found the first episode of The Gentleman on Netflix quite fascinating.

In the episode, the Duke of Halstead dies, leaving a will that divides up his assets in various ways for different people. There was also the added issue that a son with a drug problem was cut out of the will. I kept thinking as the episode developed how I would have drafted the Duke of Halstead’s will, as there was some ambiguity in the way it had been drafted. I kept thinking about what clauses I thought needed to be in the will to ensure that the Duke of Halstead’s wishes were kept and practically how the estate would have been administered.
 

Formal Reading of Wills: Fact vs. Fiction

The first thing I thought odd was that the lawyer went to the Duke’s stately home and gathered the family around for a formal reading of the will. This is often portrayed in many films as the family gathering around to find out what they will receive under the will. In practice, this rarely actually happens. Instead, the lawyer would meet with the executors named under the will and go through with them what the contents of the will actually states. Then, the lawyer would formally write to each of the beneficiaries to outline their entitlement under a will.
 

Complexities in Asset Distribution

The will itself was quite complex in that it left Geoffrey, the farm manager, a life interest in Gatekeepers’ Cottage, the house that Geoffrey lived in. This essentially means that Geoffrey could live in the property for as long as he lived, and then when he passed away, the property would fall to the residuary beneficiaries listed in the will.

The lawyer should have advised Geoffrey that accepting this gift meant that the value of the property would have been added to the value of his own estate for Inheritance Tax purposes. Perhaps Geoffrey would not have taken the gift had he known this, depending on what his own assets already were, so it is always worth getting specialist advice before accepting a gift to understand the tax consequences of this.

His wife Sabrina received an annual allowance that the new Duke of Halstead should bestow at his discretion. This is essentially funds in a Discretionary Trust whereby the Duke of Halstead can decide how much Sabrina is to receive and whether this be income or capital. As it is discretionary, Sabrina may feel she has not been left a suitable provision under the will. She also received his family dog, a labrador. Sabrina did not want the labrador and later gifted it to Geoffrey.

When making provisions for a pet under your will, it is always worth checking with the person that you intend to leave a pet to ensure that they will take care of it. This way, it ensures that the pet has been provided for and has somewhere to go when you die. You can leave provision for a pet to pass to a registered animal rehoming charity if you wish. Did you know you can also leave a pecuniary legacy (a fixed sum) to the person receiving a pet so that funds can be used on vet bills, etc?

Conditional Gifts and Trust Funds

His daughter Charlotte received a sailing boat but only on the condition that she sails around the world on it in the next six months. This is known as a conditional gift, and if the condition is not met, then the beneficiary is not entitled to the assets. In practice, many people put conditions on the recipients of a gift; for example, they must pass their driving licence or get a job before they get an asset. He also left Charlotte a trust fund of £1,000 a week until she marries.

In this case, the trust could go on for a short amount of time if Charlotte married quickly or go on for years if she chooses not to marry anyone. When making this type of trust, it is important to decide who is going to act as a trustee of the trust fund. The trustee is the person responsible for looking after the funds and distribution the same. The trust can go on for years if the requirements are not met to distribute it.

The remainder of his estate, including the Duke of Halstead’s title, house, grounds, wine, art collection, yoghurt and dairy farm, a village, and property in the south of France, passed to his secondborn son Edward, to everyone’s dismay.

Legal Misconceptions and Preventative Measures

In the episode, it is shown that the Duke of Halstead’s firstborn son, Frederick, who had a drug addiction, thought he should be entitled to the residuary estate as he was the eldest son.

He initially thought there had to be a mistake under the will and thought the family were joking around with him. When the realisation hit him that it was not a mistake, he got furious at the revelation. He said that he was entitled to it as the firstborn son and was shouting that “it was in the law and in the bible under Cain and Abel that it was the will of god that the firstborn son gets everything”.

This is not the case, as in England you can leave your estate to whoever you want so long as you have mental capacity when entering into the will, and you can update your will as many times as you like.

If I were advising the Duke of Halstead when making the will, I would have advised him that Frederick could try and make a claim under the Inheritance (Provision for Family and Dependents) Act 1975 that he had not been left reasonable financial provision under the will and that it would be prudent to write a Side Letter to his will outlining his reasons for not including Frederick. It would not prevent Frederick from making a claim against his estate, but it acts as a preventative measure.

Importance of Professional Legal Advice

It is important to take professional legal advice when making a will. We can advise you on the correct wording of clauses and whether any further documents need to be in place if you are excluding someone from your will. We will also advise you on any Inheritance Tax consequences you should be aware of.
 

If you would like to put a will in place, please get in touch with one of our will specialists. I am based in our Colchester office and can be contacted on 0330 818 3324 or leah.woodlee@birkettlong.co.uk