Construction of Wills

 In Wills

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Challenging a Will based on constructionIn these strange times, many practitioners have seen the stampede by members of the public to have Wills drafted. Practitioners were then faced with the problem of whether Wills witnessed remotely would be valid (a problem since ‘cured’ by new legislation – although this author foresees much scope in challenging these Wills) and this state of events may have prompted many to write their own Wills thereby ushering further potential problems. Of course, this is not to say that Wills drafted by advisors cannot suffer the same fate and so this Article will look at the construction of Wills.

When a Will is challenged on the basis of construction it can be argued that the words used are unclear or ambiguous. The Court then steps in to try and ascertain what the words mean. The leading case is Marley v Rawlings [2014] UKSC 2. Lord Neuberger said:

“23. In my view, at least subject to any statutory provision to the contrary, the approach to the interpretation of contracts as set out in the cases discussed in para 19 [see below] is therefore just as appropriate for wills as it is for other unilateral documents.

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  1. When interpreting a contract, the court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words, (a) in the light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions of the document, (iv) the 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.”

Section 21(1) of the Administration of Justice Act 1982 also applies. It says:

“Interpretation of wills—general rules as to evidence.

(1)This section applies to a will—

(a)in so far as any part of it is meaningless;

(b)in so far as the language used in any part of it is ambiguous on the face of it;

(c)in so far as evidence, other than evidence of the testator’s intention, shows that the language used in any part of it is ambiguous in the light of surrounding circumstances.

(2)In so far as this section applies to a will extrinsic evidence, including evidence of the testator’s intention, may be admitted to assist in its interpretation.”

In other words, the section allows extrinsic evidence (i.e. direct and circumstantial evidence) to be used to ascertain the testator’s intention and, following Marley it will be seen that the Will must be interpreted as a contract would be interpreted.

The case of Reading v Reading [2015] EWHC 946 (Ch) illustrates the use of the above. The Will used the word ‘issue’. The question for the court was whether the testator meant to include his stepchildren. Asplin J considered the word ‘issue’ and held that by itself the word did not include stepchildren. However, when the circumstances surrounding the Will and other provisions in the Will (such as the use of the words ‘such of my issue’) were considered the court held while the word ‘issue’ by itself would not include stepchildren,  when the provisions of the Will and its overall purpose were looked at the word did include the testator’s children, stepchildren and their children. (For the sake of completeness, it should be noted that section 20(1) of the Administration of Justice Act 1982 gives the court power to rectify the Will.)

In conclusion, while the section 21(1) of the 1982 Act will greatly help in the construction of a Will it cannot work alone and it cannot be stressed often enough how important the making and keeping of attendance notes etc is in this area of law.

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