Notesale: Turn your study into money

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Construction of wills
Construction
of Wills
problems

1
...

3
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Unclear meanings – what those, words or phrases mean lack of clarity can sometimes lead to intestacy
Imprecise words or phrases – expressions, untrained and unqualified
Inconsistency in clauses easily up with partial intestacy
Incorrect use of words

“Creates a minefield of problems”

The general
rule
Rule of
construction
of Wills

The golden
rule
Narrow
approach
(literal
approach)

The broad
approach

T who makes a homemade will may well find it relatively uncomplicated to satisfy the required formalities to
execute a valid will, but the drafting of the will requires a certain level of expertise
...
Conflicting approaches
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Never intention on the part of the court
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Shouldn’t be any guess work
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The court will give words their ordinary meaning in first instance
...

Abbot v Middleton: the dictionary principle
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Problems where ordinary meaning does not make sense or if the word has more than one ordinary meaning
e
...
money
...

Re Cook: court will give terms their technical meanings e
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“all my personal estate whatsoever”
Esher Mr Re Harrison, Turner v Hellard: Where there are two possible constructions the court should adopt
the one with the most sensible meaning
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Re Hodgson: T made a will two days before her death leaving her “money” to named beneficiary
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Re Rowland: home made wills, long winded provision
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No indication of who died first
...

Mrs Rowland was slightly younger then her husband
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Lord Denning pure
intentional approach
...
(the Times)
The broad approach is informed by a greater desire to achieve the most sensible result on the merits of each
particular case, even at the cost of departure from alleged precedents
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Literal approach had led to a result
not intended by the testatrix
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COA: gave the word
“moneys” a wide meaning decision was unanimous, but the result was reached by different routes
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Two chancery’s had not agreed
with the approach
...
1
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The general rule – construe words as written with the use of no external evidence
...

Allgood v Blake: Extrinsic evidence is admissible to show which beneficiary the T designated by a
particular description up to the time of his death
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Held from the facts, such evidence was admissible to show which
son was intended to take
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Re Smalley: “to my wife Eliza Ann smalley”
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Re Jackson: “to my nephew Arthur murphy” deceased had three nephews called Arthur murphy
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s
...
1
...
1
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42 AEA 1982
Legitimate child
Illegitimate child
Adopted child
Persons by
description

1
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3
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Bring evidence of T’s intention where there is ambiguous language i
...
patent ambiguity
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Bring in other extrinsic evidence to
assist in the interpretation of ambiguous language
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In
effect, it meant that evidence as to the way in which the T’s used language should be admitted
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Re Williams: T made homemade will, had not really thought through what she wanted to say
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Gibbs v Davies: Appeal in probate action
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21 AJA 1982 applied to a document having
testamentary effect, extrinsic evidence before the judge
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The “1985 will” he appointed
as executors 2 partners in a firm of solicitors
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1986 t
died
...
S
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Incapable of pointing to an intention on
the part of the T to dispose of the whole of his estate
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Held by the court to be void due to the impossibility since the pets had
predeceased the T
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Manslaughter
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DO NOT confuse rules of construction which involve T’s intentions and rules of law that do not
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“of full age”, ”infant” mean age of majority (18)
Family Law Reform Act 1987
Interest in property which will come into a person’s possession when the interest of another person’s
ends e
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TO A WHEN B DIES
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Interest in property which may or may not exist in the future
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Legitimacy Act 1976 – a legitimated child will have the same benefit as if born legitimate BUT the testator
can express otherwise
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Interpret a relationship irrespective whether parents are married
or not
...

s
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General rule: the gift will go to the person who fulfills the description at the time of the
will
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Re Whorwood: gift to Lord Shoburn, died before T
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Failure of gift
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“her husband” great
nieces husband at the time of the will being executed
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Legacy to lord major or London for time being
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What if these is no-one fulfilling description at date of the will?
1
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Is the description inaccurate, could it be ignored
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Is some other time sort? e
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death of T
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Date of T’s death
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Can beneficiary be ascertained at some future unspecified time i
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first person identified will

Gift to a witness

Gift to a charity
Gift to more than
one person

take Radford v Willis
Hickman v Hickman: In the absence of a controlling context, the court favour early vesting in applying a
gift to a wife
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Codicil pearl necklace to daughter (M)
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Grandson unmarried date of will + death of T, but married twice
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Held: the early principle applied to first person who answered the description of being the wife of the
grandson
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15 WA 1837 – the witness cannot benefit from the will if he/she attests
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15 WA 1837? It renders a gift “utterly null and void”
Re Royce’s WT: Lord Evershed – object of s
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No undue
influence
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General charitable purpose and should make provision for future non –
existence of the named charity
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Tenancy in Common: Situation where two or more person jointly hold a property and each can leave his
interest to his heirs when he died
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A gift by will of a specified item or property already part of the T’s estate and described
sufficiently by T in the will that it is distinguishable from the general mass of his estate
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General legacy

Demonstrative
Legacy

Pecuniary legacy

Residuary legacy
Contrary
intention

Lord Blackburn Robertson v Broadway: can easily fail
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Ademption
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WORDING: Bothamley v Sherson: All my stock in midland railway company
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Courts will generally try to construe gift
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A general legacy, or general bequest, is a gift not of any particular thing, but of something which is to be
provided out of the Ts general estate
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Re Gage: Sum of £1,150
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Re Willcocks: 3
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General, no indication that T owned the property
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Only owed £9k share
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1
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Court leans against specific legacies – resolve doubtful cases as if legacy is general
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Effect – treat the gift as a specific gift in so far as there is
enough in the specified fund to satisfy the gift
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Re Webster: T left his sum £3k payable out of my capital + loans in his family business
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Principle money out of residue
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s
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Duration od annuity depends
on construction of will
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This is a gift of T’s remaining personalty after payment of any specific, general and demonstrative
legacies as was as debts, liabilities and expenses charged
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Because of the use of ”my”
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Two elements in description in property:
1
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e
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2
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Contrary intention
cases

Contrary intention
Words such as “now” or at “present” can cause confusion
1
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Re Whitby: T left his personal chattel to his Niece
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At safe deposit
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Re Edwards: Leasehold house “Anchor Inn” where I reside
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Completed after Will was made
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Did shop pass on as a gift? YES
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If the phrase is superfluous s
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Garden and tennis court
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Wagstaff v Wagstaff: gift of estate “any other property I may possess” “Now” – redundant
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Sold + required other shares in the
same company
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Time will was signed
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Sikes: T left “my piano” to a friend original sold + replaced
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Ademption
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No evidence of contrary intention
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Cross villa, Templeton Pembroke
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Later built two further called across villa, with a hedge
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S
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All adopt the construction which favours the specific done

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