Construction of Wills Flashcards
Intro
- degree of subjectivity
- Ct guarded over approach to construction as don’t want to be writing Will
- problems tend to be home made Wills - can be seen what test meant but objective not achieved when Ct applies strict legal meaning of particular word or phrase
Two broad approaches to construction of Wills
- Tradition approach in Perrin v Morgan 1943 - “not what the testator meant to do when he made his will, but what the written words he used mean in that particular case… what are the ‘expressed intentions’ of the testator”.
- if test failed to express in clear, unambiguous terms, Ct have to undertake task of interpretation in light of words actually used - not for Ct to attribute to testator an intention that cannot be fairly deduced from such wording. Ct not allowed to use guesswork as substitute.
BUT, in Marley v Rawlings 2014, took more literal approach and argued it was essentially the same as interpreting a commercial document.
“when interpreting a contract, Ct concerned to find intention of the party or parties, and it does this by identifying the meaning of the relevant words,
(a) in light of
(i) natural and ordinary meaning of those words
(ii) overall purpose of the document
(iii) and other provisions of the document
(iv) facts known or assumed by the parties at the time that the document was executed and
(v) common sense
but
(b) ignoring subjective evidence of any party’s intentions”
Should be the same for interpreting Wills, aim is to identify intention of party by interpreting the words in documentary, factual and commercial context.
> Brooke v Purton 2014 - sol drafted Will, setting out in letter what trust was intended to achieve but used wrong precedent clause in Will. Ct held that clause could be interpreted to achieve result intended, so should be interpreted that way.
Rules of construction
- function of Ct is to interpret words used by test and not just make Will itself. Ct looks at Will as a whole, not simply at the part in issue. Other provisions may have made it easier, may have defined in later part of Will.
- general principle that intention of test deduced only from Will itself. Ct adopts rules of construction - rules of convenience to arrive at a solution to the meaning of a gift.
- if words in Will have clear meaning, effect will be given to them even if that is not intention of test.
>Scale v Rawlins 1892 - test left 3 houses to niece for life, and provided she dies with no children, houses pass to certain nephews. Died leaving children, but will didn’t say passes to children so passed on intestacy. - If could be shown that there was misunderstanding by draftsman when presented with instructions, could now be possible to invoke limited powers of Ct to rectify Will under s20 AJA 1982.
Meaning of words and phrases - usual meaning
- word first given ordinary grammatical meaning, to safeguard against words being too general in expression,
- meaning is meaning attributable at date of Will, dictionary definition - Perrin v Morgan 1943
Meaning of words of phrases - secondary meaning
- may be indicated:
(a) by definition clause in Will itself
(b) by application of statutory rule
(c) if when Will applied to surrounding circumstances, becomes clear that test used particular word in secondary sense as in Re Davidson 1949 - residual gift to “my grandchildren” was held to include children of stepson as Will described him as “my son” and one of his kids as “my granddaughter”
> Re Smalley 1929 - left prop to “my wife Eliza Ann Smalley” but lawful wife was Mary Smalley, but lived with woman called Eliza Ann. Ct held used “wife” in secondary sense and meant “common law wife”.
Thorn v Dickens 1906 - read “all to mot he” but mother died when Will took effect. Evidence indicated meant his wife.
Re Fish 1894 - “my niece Eliza Waterhouse” was construed, using extrinsic evidence, to mean his wife’s great niece of that name,
- secondary meaning often emerge when look at circumstances applying when made Will
> Boyes v Cook 1880 - armchair rule described - “place yourself so to speak in the testator’s armchair and consider the circumstances by which he was surrounded when he made his Will”.
Charter v Charter 1874 - left prop to “my son Forster Charter” but Forster had died before Will made. On application of armchair rule, revealed one son with middle name “Forster” hardly saw dad, but other that lived with dad was often referred to as “Forster” by dad.
- now covered by s21 AJA 1982 as Wills either meaningless as stood or there was latent ambiguity.
Meaning of words or phrases - words with more than one meaning
- Ct adopt most probable meaning, as per Perrin v Morgan 1943, gives wide discretion to Judge.
>Re Everett 1944 - “stocks and shares” held to pass all shares in limited companies but not redeemable debentures.
>Re Purnchard’s Will Trusts 1948 - same expression held to include all investments. - when looking at “money”, considers meaning at date of Will and effect of the rest of the Will, coupled with meaning to that particular testator, given level of education and standing in life.
>Re Barnes 1972 - use of word “money” varies between different classes and different parts of Country. Judge should apply own knowledge of language in light of context and circumstances known to him.
Meaning of words and phrases - Technical words and phrases
- dangerous, particularly for homemade Wills. Where test uses word or phrase that has technical (legal) meaning, strong presumption that words will carry technical meaning
>Re Cook 1948 - “all my personal estate whatsoever” was held not to include test’s realty (land).
-“male issue” technical phrase meaning male descendants in male line, “male descendants” means males descended through both male and female line - Re Drake’s Will Trust 1970. “next of kin” construed as nearest blood relatives
- “relations” and “family” are wife terms that could fail for uncertainty, but could also construe as meaning those who would benefit on intestacy but sharing per capita rather than per stirpes.
-“personal property” - where land on trust for sale and was a result was being regarded as personal property. This situation, has been altered by s3 Trusts of Land and Appointment of Trustees Act 1996 which provides that land held on trust of land now regarded as real property, while personal property held on trust to acquire land is to be regarded as personal property. Leasehold land still remains personal property.
Meaning of words and phrases - custom
- if test belonged to special group of people and word or phrase had special meaning among that group, special meaning will be adopted.
>Shore v Wilson 1842 - test was member of religious sect and term “godly preachers” was given meaning current among members of the sect
Meaning of words and phrases - punctuation
- dangerous, as comma or colon could place meaning on gift which wasnt intended. Ct take into account punctuation, words in capitals and blanks, in seeking to identify subject matter and objects.
>Gauntlett v Carter 1853 - devised estate “Bullen Court, Strand and Maiden Lane” but Bullen Court was off the Strand. Ct concluded test meant another property, as was comma before Strand indication separate description.
Meaning of words or phrases - considering document as a whole
- Ct exercises great caution over reading words into Will and does so only if it is clear from Will (“from the four corners of the document”)
>Re Whitrick 1957 - Test left entire estate to H and provided that “in event of my husband… and myself dying at the same time” should be held on trust for X, Y and Z equally. On literal reading, failed as H predeceased her, but Ct of A said was clear that intended to pass over if predeceased as well, so passed to X, Y and Z.
> Anthony v Donges 1998 - added clause that widow should have “such minimal part of the estate as she may be entitled to under English Law”, but Ct held was void for uncertainty and widow should make app under I(PFD)A 1975.
- power of Ct to supply, omit or change words was very limited, may be obvious from Will that error made, but Ct of construction cant supply, omit or change words if leaves substance of intended wording in doubt unless s20 AJA 1982 applies allowing Ct to add wording to will under power of rectification.
Admission of extrinsic evidence - general rule
- normally, Ct only construes words in Will itself using words of construction, wont readily admit extrinsic evidence - evidence from outside such as personal circumstances, letters to relatives or things said by test as means to discover intention.
- main reason is that would make s9 WA 1837 redundant.
- Ct established circumstances which justify taking account of extrinsic evidence, especially if they dont might mean will is ineffective. Notable cases are:
. if words in Will not apt to fit surrounding circumstances - armchair rule as per Boyes v Cook 1880
. There is latent ambiguity - words on face of Will seem clear but when effect given, found from circumstances that words can apply to 2 or more people or items of property - Re Jackson 1933
. to rebut certain equitable assumptions that would otherwise apply
- position now is that s21 AJA 1982 allows extrinsic evidence, not only in cases of armchair rule or latent ambiguity, but also if Will is meaningless or patent ambiguity.
s21 Administration of Justice Act 1982 - s21(1)(a)
- s21(1)(a) - insofar as any part of the will is meaningless
- narrow linguistic concept, lack of meaning must be apparent from face of Will, such as code being used
S21 Administration of Justice Act 1982 - s21(1)(b)
- s21(1)(b) - insofar as the language used in any part of it is ambiguous on the face of it
- change in law where Ct now permitted to admit extrinsic evidence to resolve patent ambiguity - would permit evidence of intention to be admitted in cases such as Perrin v Morgan 1943
> Re Williams 1985 - test set out 25 names, in 3 groups, no common pattern, uneven and each contained various people. Day before death, wrote to sol asking to give various legacies to members of groups. As will ambiguous, letter could be admitted under s21(1)(b) but was of no assistance anyway.
- Nicholls J said that extrinsic evidence can be admitted to show which of 2 or more possible meanings test attached to particular word or phrase, as long as meaning was one that word or phrase as read in its context was capable of bearing. If was one that cannot bear, Ct cant apply provisions.
> Tyrrell v Tyrrell 2002 - instructions taken from legal clerk of sols. Family knew wanted to leave residuary to 4 grandsons. After died, Will found to say leave to 2 grandsons, wife of one and non existent person with similar name. Evidence that test frequently confused over names, so Ct held didnt reflect intentions so was amended.
> Spurling v Broadhurst 2012 - Test Will said “I give the rest of my estate to.. D1, D2, the living grandchildren of D1, and C1 in equal shares.” Clause ambiguous and Ct had to look at wording, extrinsic evidence as per s21 (1)(b), comma was disregarded and Ct eventually held would be split equally between all 13 beneficiaries.
s21 Administration of Justice Act 1982 - s21(1)(c)
- s1(1)(c) - insofar as evidence other than evidence of the testator’s intention shows that the language used in any part of it is ambiguous in light of the surrounding circumstances
- extrinsic evidence can now be admitted to raise the possibility that such ambiguity exists.
- evidence of dec’d intention cant be introduced to raise ambiguity in first place because only evidence of the surrounding circumstances is admissible. Once ambiguity identified, extrinsic evidence of test’s intention is admissible to try and resolve it.
> Re Jackson 1933 - left prop to “my nephew Arthur Murphy” but at date of Will, was 3 of them, 2 legitimate, one illegitimate. Evidence of surrounding circumstances showed ambiguity and extrinsic evidence showed she wanted illegitimate one to take it. At time, couldnt adduce evidence from outside Will so wouldnt have recognised illegitimate nephew, but now s21(1)(c) would have allowed evidence to show more than one.
> Pinnel v Anison 2005 - left residuary to brother, P and sister H in equal shares. Put address of H in correctly, but H not his sister, but a friend. Most logical explanation, once looking at extrinsic evidence, was that mistakenly put H in instead of X, so Will amended to insert X.
> Royal Society v Robinson 2015 - test made Swiss Will dealing with Swiss assets, then English Will that said “this Will and any Codicil to it shall be construed and take effect according to English Law; this Will and any Codicil to it shall extend only to property of mine which is situated at my death in the United Kingdom”. Most of assets in off-shore accs in Jersey and Isle of Man which not part of UK.
- Could be interpreted more widely applying s21(1)(c) as he had bits off-shore and also he wrote to his sol saying that don’t get until 25. Once established, extrinsic evidene admitted to show intention, and found that included stuff elsewhere.
Deciding if a gift is absolute or limited - s22 Administration of Justice Act 1982
- s22 - except where contrary intention is show it shall be presumed that if a testator devises or bequeaths property to his spouse in terms which in themselves would give an absolute interest to the spouse, but by the same instrument purports to give his issue an interest in the same property, the gift to the spouse is absolute notwithstanding the purported gift to the issue.
> Harrison and Another v Gibson and Others 2006 - test made homemade Will, married at time of death and had 4 kids. “the bungalow I live in trust to my wife. If she falls on hard times it could be sold to raise cash” - crossed out second sentence, added word deleted and inserted “on her death the bungalow is to be sold and the cash raised is to be equally divided between my children. No doubt if mum runs into money problems you can sort everything out. Like selling the bungalow.”
- T died, then wife made Will leaving bungalow on trust in favour of 3/4 kids, one predeceased, but shares not equal. S22 allowed Ct to look beyond words of Will to context of will as whole, so stat presumption had been displaced as W only had life interest, so 3 kids got bungalow in equal shares.
