Construction of Wills – Spurling & Ors v Broadhurst & Ors  EWHC 2883 (Ch)
This interesting case on construction looks at a handwritten Will and how a residuary gift, which was ambiguous, should be interpreted: per capita or per stirpes for the size of shares and the identity of all the beneficiaries.
It usefully repeats the principles of construction, including the importance of punctuation, but stresses that the construction of words in one Will does not mean that they will necessarily be given the same meaning in another Will: factual context is key.
On 29 December 2010 Ronald Gibbons made a handwritten Will by which he appointed the claimants David Spurling and Jonathan Spurling as his executors. Ronald had no family and left the residue to his executors “to hold on trust to pay my debts, taxes and testamentary expenses and pay the residue to Veronica Broadhurst, Ann Foden, the living grandchildren of Veronica Broadhurst, and David Spurling in equal shares”.
Following Ronald’s death in 2011 his executors sought a declaration as to the meaning of this ambiguous clause.
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The executors asked for two ambiguities to be decided on:
- Whether it was David or his grandchildren who should benefit; and
- Whether the classes of grandchildren should benefit per capita or per stirpes.
Veronica and Ann were the first two defendants, the minor grandchildren of David were the third to sixth defendants and the (mostly minor) grandchildren of Veronica were the remaining seventh to thirteenth defendants.
The executors put forward four possible constructions of the clause:
- The residue should be divided into 13 shares with one share being due to each defendant so David’s grandchildren rather than David himself would benefit and residue would be shared per capita;
- The residue should be divided into four shares with one share to each of Veronica, Ann and David and the remaining share being divided between Veronica’s grandchildren so David would benefit rather than his grandchildren and a per stirpes division;
- The residue should be divided into four shares with one share to each of Veronica and Ann, one share between David’s grandchildren and the remaining one share being divided between Veronica’s grandchildren so again a per stirpes division and David’s grandchildren rather than David would benefit; or
- The residue should be divided into ten shares with one share to each of Veronica, Ann and David and the remaining seven shares to each of Veronica’s grandchildren so with David benefitting rather than his grandchildren and a per capita division.
Unusually, both claimants and all defendants were represented by the same firm of solicitors and the same counsel, with a view they said to saving costs. This was on the basis that providing the information was presented neutrally, all parties were content to be bound by the court’s interpretation. The judge HHJ Hildyard was not comfortable with this due to potential conflicts of interest, the fact that the minors had not been independently advised and adversarial argument had not been heard.
Veronica and her family said in evidence that the testator had a particularly close relationship with them and being a very precise and articulate person he would have intended a division of the residue into ten shares as per alternative 4. above.
David’s family said that the testator was also very close to them and had said he intended to leave his estate to David’s grandchildren and Veronica’s grandchildren as per alternative 1. above.
Ann had been a friend of testator’s and she felt very strongly that he would have wanted David’s grandchildren rather than David to benefit.
Counsel referred to Re Dale, Mayer v Wood  1 Ch 357 as authority for a gift to the children of A and B in equal shares to usually mean a division per capita between individual B and the children of A. However as the judge in that case held, this is “not invariable and depended on the context or surrounding circumstances” and decided that it was a gift to the children of A and the children of B, rather than individual B.
Factual context must then be considered such as in Re Walbran, Milner v Walbran  1Ch 64 where the history of the family was taken into account so it was unlikely that the children of a son who had deserted the family should be preferred over another son.
Judge Hildyard HHJ referred to the Privy Counsel decision Sammut & Ors v Manzi & Ors  WTLR 1051 for authority that the starting point is to try and ascertain the intention of the testator by giving the words their natural meaning. Similar wording in other wills may not have the same construction in another Will where the context is different.
Punctuation may be taken into account but its weight depends on the context, Houston v Burns  AC 337, although “it is likely to more significant in the case of a manuscript will than in one produced on a word processor”.
S21 Administration of Justice Act 1982 allows extrinsic evidence of the testator’s subjective intention to be admitted by the court where a Will is ambiguous.
Judge Hildyard HHJ held that although each of the four alternatives could be the true meaning of the ambiguous words, the proper construction was the first alternative above so the residue should be divided into 13 equal shares with one share to each of Veronica, Ann, the grandchildren of David and the grandchildren of Veronica. It would fit with the testator’s intentions for all beneficiaries to receive the same with none being favoured over the others.
“Each case is different and must be decided according to the actual words used, and construing the will as a whole in the factual context in which it was made.”
The judge emphasised that in this case the testator had no children or any family of his own and had essentially ‘adopted’ both families mentioned in the Will. She found that he had “loved and supported both” and had got on very well with all the grandchildren. It was unlikely in the context that the testator would want the grandchildren of one family to benefit and not also grandchildren of the other. Nor would he want Veronica and Ann to receive more than the grandchildren.
The judge took account of the hearsay evidence of the testator’s wish to benefit both sets of grandchildren insofar as it supported other evidence of his subjective intentions. She thought that non-lawyers would be more likely to think of a per capita division and the per stirpes concept is “beloved of lawyers”.
The judge held that the punctuation of the handwritten Will should be considered as the testator had been a very careful man but the comma after mention of Veronica’s grandchildren (the living grandchildren of Veronica Broadhurst, and David Spurling) did not have any particular significance. The testator was very ill with cancer at the time of writing his Will and there was not consistent punctuation throughout.
“…the significance to be attached to punctuation (if any) will depend on the context, and the apparent consistency and accuracy (or the lack of it) in terms of punctuation in the will as a whole.”
By way of obiter Judge Hildyard HHJ also stated that the decision in this case is not to be taken as approval of the process of all parties being represented by the same firm or counsel where the court is being asked to rule on an ambiguity. The court should rule after the “benefit of adversarial argument”. The net estate was declared for probate purposes at £1,394,426 so could have born the costs of separate representation for the minors.
- When a practitioner is drafting any document, careful use of precedents is always preferable to using “ordinary” words so there is no doubt as to the meaning of any clauses.
- Words need to be used carefully if there is a mix of beneficiaries who are named and those referred to by class such as the grandchildren of x. Take careful instructions on how many shares are intended and the identity of the beneficiaries.
- If you need to ascertain the meaning of ambiguous words, start by giving them their natural meaning bearing in mind the contents of the document as a whole and see if the testator’s meaning becomes clear from this.
- If you come across documents where their meaning remains uncertain, obtain advice on them and if necessary make an application to court for their construction to be ruled upon, rather than press ahead with distribution
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