Charles v Barzey

JurisdictionUK Non-devolved
JudgeLord Hoffmann
Judgment Date19 December 2002
Neutral Citation[2002] UKPC 68
CourtPrivy Council
Docket NumberAppeal No. 11 of 2002
Date19 December 2002

[2002] UKPC 68

Privy Council

Present at the hearing:-

Lord Hoffmann

Lord Browne-Wilkinson

Lord Hope of Craighead

Lord Scott of Foscote

Sir Philip Otton

Appeal No. 11 of 2002
John A. Charles
Appellant
and
Yvette Barzey
Respondent

[Delivered by Lord Hoffmann]

1

The question in this appeal is the meaning of a devise in the will dated 14 April 1980 of Iris Charles, who died at Elmshall, Dominica on 11 March 1986. At the time of her death she owned several properties. Two were in Cork Street, Roseau. One was No 9, where she was living at the time of her will. The other was No 18, which was a dwelling house together with what was described in her will as an "addition" consisting of a garage and storeroom. The access to these additional premises was directly from the street and they were used by her nephew John Charles as a storeroom for the purposes of the pharmaceutical business of a company controlled by him which occupied the premises next door. Both the house at No 18 and the garage and storeroom were registered in the Register of Titles in Dominica as a single lot and held under the same certificate of title.

2

She left No 9 Cork Street to John Charles absolutely. The devise of No 18 was in these words:

"I hereby give and bequeath to my niece, Mrs Yvette Barzey my house and lot at 18 Cork Street, Roseau, Dominica. The addition to the house where the garage and storeroom is located I give to my nephew Mr John A. Charles to be used by him as long as he wishes."

3

Mrs Barzey is the sister of Mr John Charles. She claimed that upon the true construction of the will, she took an unencumbered freehold interest in the whole registered title and that Mr John Charles took nothing. On 11 November 1998 she issued an originating summons in which she sought a declaration to this effect and an order that she be registered with an unencumbered title.

4

The application came before Einfeld J on 12 March 1999. He held that clause 4 meant that Mrs Barzey was to take the fee simple in No. 18 subject to a life interest in the garage and storeroom given to Mr Charles. Mrs Barzey appealed to the Court of Appeal, which on 13 September 1999 allowed the appeal. The Court gave a brief judgment:

"In this appeal we see no difference in facts between Da Costa [ Da Costa v Warburton (1971) 17 WIR 334] and this case. The user of the garage and the storeroom is repugnant to the bequest to the appellant."

5

Mr Charles was entitled as of right to appeal against this decision to Her Majesty in Council but for reasons into which it is now unnecessary for their Lordships to enter, did not exercise this right in time. But on 5 July 2001 he was granted special leave to appeal and did so. He was represented before the Board by Mr Steinfeld QC and Mr Lenworth Johnson. Mrs Barzey was unfortunately not represented; she wrote to the Registrar saying that she could not afford to instruct counsel. Mr Steinfeld has however referred the Board to the authority upon which the Court of Appeal relied and their Lordships consider that all the points that might have been made on Mrs Barzey's behalf have been put before them.

6

The interpretation of a will is in principle no different from that of any other communication. The question is what a reasonable person, possessed of all the background knowledge which the testatrix might reasonably have been expected to have, would have understood the testatrix to have meant by the words which she used. Furthermore, as Lord Greene MR said in In re Potter's Will Trusts [1944] Ch 70, 77:

"It is a fundamental rule in the interpretation of wills that effect must be given, so far as possible, to the words which the testator has used. It is equally fundamental that apparent inconsistencies must, so far as possible, be reconciled, and that it is only when reconciliation is impossible that a recalcitrant provision must be rejected. Even in that case, of two irreconcilable provisions, it is the later that prevails, but in the present case there is no need to have recourse to this rule of despair."

7

Their Lordships think, as did Einfeld J, that there cannot really be any doubt about what the testatrix meant. She intended Mrs Barzey to take No 18, subject to the right of Mr Charles to use the garage and storeroom for as long as he wished; an interest which the law will classify as a life interest: compare Coward v Larkman (1888) 60 LT 1 (HL). Admittedly she could have made it even clearer by using words like "Except that" before the second sentence of the devise. But that was obviously her intention. It is supported by the background, which was that the garage and storeroom had for many years been used in connection with the pharmacy next door and not with the house.

8

The arguments against giving effect to the evident intention of the testatrix are two. First, reliance was placed upon section 29 of the Wills Act (Laws of Dominica, C 9:01):

"Where any real estate is devised to any person without any words of limitation, the devise shall be construed to pass the fee simple, or other the whole estate or interest which the testator had power to dispose of by will in the real estate, unless a contrary intention appears by the will."

9

This provision, which reproduces section 28 of the English Wills Act 1837, reversed the old common law rule that in the absence of words of limitation (such as "and his heirs" or "in fee simple") a devise was construed as passing only a life interest. Today, the omission of words of limitation does not prevent the fee simple from passing unless the will shows a contrary intention.

10

But their Lordships consider that this provision has no relevance in the present case. There is no dispute that the gift of No 18 to Mrs Barzey was in fee simple. No one suggests that it was merely a life interest. The question is whether her fee simple was subject to a life interest in favour of Mr Charles. But on this question section 29 of the Dominican Wills Act has nothing to say, one way or the other. It says that the gift shall be...

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7 cases
  • Baynes v Hedger and Others
    • United Kingdom
    • Chancery Division
    • 14 July 2008
    ...as Mr Terry submits, the gift of The Dunshay Manor Estate is an absolute gift, so that the debts etc must be paid out of residue. 106 In Charles v Barzey [2003] 1 WLR 437 Lord Hoffmann, writing for the Privy Council, said: “The interpretation of a will is in principle no different from that......
  • Re PQR, Deceased
    • Bermuda
    • Supreme Court (Bermuda)
    • 8 December 2014
    ...construing homemade forfeiture clauses existed, counsel would have failed to find explicit support for it. 25 The following passage in Charles v Varzey [2002] UKPC 48, [2003] 1 WLR 437 in my judgment suggests that a liberal construction of homemade wills is only justified in exceptional ca......
  • Ann Marie Llewellyn Young v Louise Hilda Llewellyn
    • Jamaica
    • Supreme Court (Jamaica)
    • 5 July 2019
    ...from the language of the will applied to the surrounding circumstances of the case.’ 54 Lord Hoffmann in the Privy Council case of Charles v Barzey [2003] 1 WLR 437 at page 439, paragraph B, stated that: ‘the interpretation of a will is in principle no different from that of any other comm......
  • Sylvia Gayle-Henry v Lloyd Gayle and Cedric Gayle
    • Jamaica
    • Court of Appeal (Jamaica)
    • 9 February 2018
    ...grammatical and ordinary sense of the words may be modified so as to avoid that absurdity or inconsistency, but no further.” [36] In Charles v. Barzey [2002] UKPC 68 the Board was hearing an appeal from Dominica involving section 29 of the Dominican Wills Act (which is also in pari materia ......
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