Construing a Will in the Probate Court
The growing shift from a “literalist” to an “intentionalist” approach to Will construction is illustrated by decisions such as Blech v Blech  WTLR 483 and Thomas v Kent  WTLR 177. These follow the well-known speech of Lord Hoffman in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd  AC 749 at 776-777 and his further comments made in Investors Compensation Scheme Ltd v West Bromwich Building Society  1 WLR 896 concerning the application of common sense in the interpretation of documents.
The recent decision of Norris J in Parkinson v Fawdon  WTLR 79 illustrates a more fundamental but often overlooked distinction between the approach adopted by the Court when determining a Probate Claim and the approach adopted by the Court when determining a claim concerning the construction of a Will. These are different jurisdictions and the difference in approach became important in Parkinson v Fawdon.
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The Deceased had appointed “my nephew Mark Parkinson of 215 Ditching Road Brighton in the County of Sussex” together with the Defendant Edith Vera Fawdon to be his executors and trustees. He had also divided his estate in half, one half going to “my said nephew Mark Parkinson”. Edith Fawdon was one of the persons entitled to the other half.
Nobody answered the description “my nephew Mark Parkinson of 215 Ditching Road Brighton” although the Deceased’s great-nephew, Justin Parkinson, claimed that he was the intended executor and beneficiary and he brought a claim to rectify the Will by replacing “Mark Parkinson” with “Justin Parkinson”.
As Norris J noted, before it can be decided (in accordance with s 20 of the Administration of Justice Act 1982) that the Will does not, by reason of a clerical error or a failure to understand testator’s instructions, carry out the testator’s intentions [and is therefore capable of rectification] it must first be decided what the document he executed actually means. I.e. there was an antecedent question of construction to be dealt with. This question of construction was raised by Mrs Fawdon by way of counterclaim in the proceedings
The judge noted that he was determining a probate action and pointed out that: “In exercising its jurisdiction to make grants of probate . . . the main functions of the court (whether as the Chancery Division or the Family Division) are to ascertain and determine what testamentary paper or papers are to be regarded as the deceased’s last Will, and who is entitled to be constituted as his or her representatives. Save in so far as is necessary in order to fulfil those functions, the court is not required to construe the relevant documents . . . .”
It is necessary, however, to construe the Deceased’s Will to identify the parties entitled to take a grant. The judge then considered In Re Resch’s Will Trusts  1 AC 514 where Lord Wilberforce drew attention to the breadth of evidence that is admissible in a court of probate, saying (at p 547C):
“The principles which ought to be applied on such a question is this, by a court of construction, as compared with those applicable by a court of probate have been clearly stated by Sir John Nicholl. ‘In the court of probate the whole question is one of intention: the animus testandi and the animus revocandi are completely open to investigation’ . . . and ‘in a court of construction, where the factum of the instrument has been previously established in the court of probate, the enquiry is pretty closely restricted to the contents of the instrument itself, in order to ascertain the intentions of the testator’: Greenough v Martin (1824) 2 Add 239 at 243.”
That latter statement is, of course, now subject to the intervention of Administration of Justice Act 1982, s. 21 so that extrinsic evidence including evidence of the testator’s intention may be admissible to assist in the construction of a Will. But evidence of the testator’s intention itself is not available to show that the language used by the Will is ambiguous in the light of surrounding circumstances.
As noted above, the cases reveal the beginning of a move towards a more intentionalist approach in the court of construction.
In the court of probate the principles are different and, applying those principles, Norris J held that he could “at the least take into account as an aid to construction (a) all the persons and facts known to the Deceased at the time when he made his Will; and (b) any document which is substantially contemporaneous with the Will and is of an important character and which shows who the testator had in mind and intended by the misdescription.”
On the basis of the available evidence the judge found that the reference to Mark Parkinson was a misdescription of Justin Parkinson, whom the Deceased intended to appoint as executor and to receive the share in his residuary estate.
Thus, rectification was not necessary because of the ability to adopt an intentionalist approach to Will construction within the jurisdiction of the court determining a probate claim.
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