Construction and Interpretation of Wills
| Author | Lesley King/Peter Gausden |
| Pages | 67-83 |
7.1 Introduction
A will should mean what the testator intends it to mean.
However, if the testator’s intention is not clear, then it ultimately falls to the court to determine what the testator intended. The court applies certain established principles of construction to the meaning of particular words and phrases and is assisted by a number of statutory provisions to determine the will’s meaning.
This chapter considers common rules of construction as applied to a will. The issues covered here are important:
(a) Firstly, to the practitioner who is engaged in advising a testator on the terms of a new will and who is then faced with the task of drafting it. An awareness of the rules of construction is essential, not least because the practitioner needs to know when it may be necessary to vary the meaning that might otherwise be implied by the court or statute. In most cases, statutory rules of construction are subject to a contrary intention expressed in the will.
(b) Secondly, to the practitioner advising PRs and beneficiaries who need to know how a will should be interpreted following the death. PRs must carry out the terms of a will exactly as the testator intended to the extent the law allows. Failure to do so makes them liable to those who should have been the recipients of the testator’s property.
A will which is professionally drawn ought to be clear and readily understood, at least by lawyers and other professionals. However, even professionally drawn wills can contain mistakes and ambiguities making it impossible to say, with confidence, what the will actually means. Such problems are likely to be more common with homemade wills. If difficulties arise, the PRs cannot prudently administer or distribute the estate until they are adequately protected against any comeback from parties who may have a different view on the will’s meaning.
PRs can seek such protection in various ways, including the obtaining of insurance or getting all beneficiaries who are affected by the ambiguity, etc to come to an agreement as to how the will is to be construed (if this is
68 Wills: A Practical Guide
possible). Otherwise, the PRs must obtain a determination from the court to say what the will means and how they should give effect to its terms. Obviously, this imposes an additional costs burden on the estate, notwithstanding the possibility of recovery via a negligence claim against the will maker.
7.2 General principles of construction
7.2.1 Jurisdiction
Any questions of construction which arise are normally dealt with by the Chancery Division by means of an application under CPR, rule 64.2 using the non-contentious procedure under CPR, Part 8. The claim will usually ask for a determination on a particular question, such as who is entitled under a particular provision. CPR, PD 64 gives examples of the sort of claims which may be made.
The Family Division’s jurisdiction on construction or interpretation of a will, as applied by the probate registry, is limited to determining title to the grant of representation. If this involves the construction of a clause or phrase, or even the will as a whole, to determine a potential grantee’s right to benefit (and hence to apply for a grant), an application must be made to the Chancery Division.
7.2.2 Court’s function in construing a will
The role of the court is to ascertain the intention of the testator as expressed in the will when read as a whole. It is not the court’s function to re-write the will, nor guess at what the testator might have intended.
In Royal Society for the Prevention of Cruelty to Animals v Sharp and others [2010] EWCA Civ 147, [2011] STC 553, Patten LJ in the Court of Appeal said it is dangerous to approach the assessment of the testator’s intentions other than through the language of his will. This case concerned the burden of inheritance tax, the outcome of which fell to be decided on what was intended in a professionally drawn will, and he was critical of the judge at first instance who sought to find a different interpretation from that which appeared on the face of the will. He said:
Although solicitors do make mistakes, there needs to be something in the language of the document or its admissible background to justify that inference. More importantly, those factors must be such as to permit the Court to give the words actually used a meaning which is not strictly in accordance with the usual rules of grammar or vocabulary.
He went on to say that this is in accordance with the approach to the construction of contracts taken by the House of Lords (as it then was) in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 All ER 98.
This view was subsequently taken up by the Supreme Court in Marley v Rawlings [2014] UKSC 2, where Lord Neuberger said interpreting a will is essentially the same exercise as interpreting commercial documents such as contracts, notices and patents:
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. ... When it comes to interpreting wills, it seems to me that the approach should be the same. Whether the document in question is a commercial contract or a will, the aim is to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context.
His Lordship’s conclusion, as he acknowledged, was not revolutionary. Over a century ago in Boyes v Cook [1880] LR 14 Ch D 53, CA, the court said when interpreting a will, it should ‘place [itself] in the [testator’s] arm chair’. The old so-called ‘armchair rule’ was consistent with the modern approach to interpretation by reference to the factual context in which the will was made. Nonetheless, courts now place reliance on Lord Neuberger’s approach, both as an objective in determining construction issues and as justification for interpreting a will in a way that may not be entirely obvious.
For example, in Reading v Reading [2015] EWHC 946 (Ch), the judge construed ‘issue’ as including step-children, contrary to its usual meaning, since there were indications, both in the will as a whole and in the factual background, that this was the testator’s intention.
Again, in The Royal Society v Robinson [2015] EWHC 3442 (Ch), the will was expressed to apply only to the testator’s property ‘in the United Kingdom’. Both at the time of the will and at his death, the testator’s major assets were bank accounts in Jersey and the Isle of Man. The normal meaning of ‘United Kingdom’ is limited to England and Wales, Scotland and Northern Ireland, where the testator had virtually no assets at all, and does not extend to the Channel Islands or Isle of Man. However, given the factual background the judge felt able to give ‘United Kingdom’ an extended meaning.
70 Wills: A Practical Guide
7.3 Applying basic rules of construction
In determining the testator’s intention through the language of the will, the courts apply various rules of construction. Unfortunately, there is no pre-determined checklist of steps that need to be taken, not least because every case is different. However, as a starting point, the court applies two basic presumptions:
(a) Non-technical words are given their ordinary meaning, or that intended by the testator when there are several ordinary meanings. In Perrin v Morgan [1943] AC 399, the House of Lords had to consider the use of the word ‘money’, a word that can have several ordinary meanings, ranging from ‘cash’ to the whole of a person’s property (as in ‘it’s his money she’s after’). In such a case, the court construes the word in the context of the will (with the aid of any admissible extrinsic evidence, see para 7.4). The testator in Perrin v Morgan had made a gift of his ‘money’ and also provided for a gift of residue. It was decided that the word ‘money’ referred to all his personal property.
(b) Technical words are given their technical meaning. So, in Re Cook [1948] 1 All ER 231, ChD, a testatrix gave ‘all my personal estate whatsoever’ to her nephews and nieces. It was held that her realty (which comprised the bulk of her estate) did not pass under her will but under the intestacy rules.
However, these presumptions may be rebutted under the so-called ‘dictionary principle’ if from the will (and any admissible extrinsic evidence, see para 7.4) it is clear that the testator has used the...
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