Construction of Wills

Question 1

Traditional Approach

Answer 1

Perrin v Morgan (1943) – The question is not, of course, what the testator meant to do when he made his Will, but what the written words he used mean in the particular case … what are the ‘expressed intentions’ of the testator.

Question 2

Liberal Approach

Answer 2

Lord Neuberger – Marley v Rawlings (2014)
The court is concerned to find the intention of the party or parties, it does this by identifying the meaning of the relevant words
(a) in Light of
The natural and ordinary meaning of the words
The overall purpose of the document
Any other provisions of the document
The facts know or assumed by the parties at the time the document was executed
Common sense
But (b) ignoring the subjective evidence of any party’s intentions

Question 3

The Armchair Rule

Answer 3

Boyes v Cook (1880) – You place yourself so to speak in the armchair of the testator, and consider the circumstances by which he was surrounded at the time he made his Will

Question 4

Identifying People

Answer 4

What T called them is fine does not need to be legal name
Thorn v Dickens (1906) – All to Mother
Charter v Charter (1874) – My son ‘Forster’. Testator had 3 sons Forster (who had died before the will was executed), William Forster and Charles. Application of the armchair rule revealed that William Forster was commonly called Forster by his father.

Question 5

Extrinsic Evidence

Answer 5

S21 Administration of Justice act 1982
Re: Williams (1985) – A letter to a solicitor written the day before the testators death was admitted to probate to help clarify a list of 25 names in three groups in her Will.

Question 6

Inconsistent Clauses

Answer 6

Re: Hammond 1938 – If two parts of a Will are inconsistent then the later part of the Will shall prevail.
Does not apply where two persons could each take a half – Re: Alexander’s Will Trust 1948