Harrison and another v Gibson and Others
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE HART,Mr Justice Hart |
| Judgment Date | 21 December 2005 |
| Neutral Citation | [2005] EWHC 2957 (Ch) |
| Docket Number | Case No: HC05C02009 |
| Court | Chancery Division |
| Date | 21 December 2005 |
[2005] EWHC 2957 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Mr Justice Hart
Case No: HC05C02009
(In His Personal Capacity and as Executor of Walter James Harrison Deceased)
(In His Capacity as Executor of May Isabel Olive Harrison Deceased)
(In His Capacity as Personal Representative of John Harrison Deceased)
Mr David Rees (instructed by A. C. S. Hards & Co.) for the Claimants.
Mr Michael Waterworth (instructed by Mackrell Turner Garrett and Thring Townsend) for the 2 nd and 3 rd Defendants respectively.
Hearing date: 14 th December 2005
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
By this summons the claimants seek the determination of the court on a point of construction which has unfortunately arisen on a will dated 6 th October 1990 of the late Walter James Harrison ("the testator") who died on 6 th November 1998.
The testator left surviving him a widow ("May") and four children John, Marion, Peter and Jean. May died on 14 th February 2004. By that time John had died, and his estate is represented before me by the third defendant, his personal representative.
The issue concerns the devolution of the testator's freehold bungalow at 28 Lyndon Close, New Haw, Addleston, Surrey.
By his will, which was a home made will, made on a printed form on which he had made his dispositions in manuscript, the testator appointed John and Peter to be executors and then made the following dispositions. By clause 1 he gave £300 to each of nine named grandchildren. Clause 2 was in the following terms:
"2. All monies and investments to my wife. The money is in three places.
Alliance & Leicester Building Society,
Gilt Stock,
Barclays Bank West Byfleet."
Clause 3 then read as follows:
"3. The Bungalow I leave in trust to my
wife";
Then, after the word "wife" which appears at the very beginning of the second line of the page, the testator has started a new line and written:
"If she falls on hard times it could be sold to raise cash"
He has then crossed out those words and added the word "deleted" over them, and then started a new line. The will goes on:
"On her death the Bungalow is to be sold and cash raised is to be equally divided between my children
John
Marion
Peter
Jean.
The best of luck to you all
Dad [then signature of W Harrison]
No doubt if mum runs into money problems you can sort something out. Like selling bungalow [the signature of W Harrison]"
Following the testator's death, probate was granted to Peter with power reserved to John, and the bungalow was then assented to May. By May's will, dated 26 th June 2002, she left the bungalow on trust for sale with a direction to divide the proceeds as to 41.67% for Peter, 41.67% for Jean, and 16.66% for Marion.
The question is whether clause 3 of the testator's will was to pass the bungalow to May absolutely (in which case Peter, Jean and Marion will take in the unequal shares provided for by May's will) or whether she only took a life interest, with the four children now being absolutely entitled in equal shares on her death.
Mr David Rees of counsel has appeared before me on behalf of Peter and Jean (who are the claimants) and has argued for the former construction. Mr Michael Waterworth of counsel has appeared on behalf of Marion and John's estate to argue for the latter construction. May's executor, Mr Gibson was a party to the proceedings but took no part in the argument.
The usual task of the court in construing a will is to seek to determine upon a fair reading of the will as a whole, assisted by such extrinsic evidence as is admissible for the purpose, what is the testator's intention and, subject to applicable rules of law, to give effect to the intention so found. In approaching that task the court frequently derives assistance from rules of construction which give guidance as to the approach to be taken in cases of ambiguity or other difficulty. Since, over the centuries, very many wills have thrown up very many such ambiguities and difficulties, a good number of such rules have been generated. In some cases the existence of such rules has no doubt enabled parties to avoid the expense and anxiety of court proceedings which their concomitant tendency to provoke dissension within families. In other cases the existence of those rules, not least because they sometimes pull in different directions, can seem productive of the very problem which they seek to solve.
In the present case the rule of construction invoked by Mr Rees on behalf of the claimants is, unusually, a statutory rule, namely that contained in section 22 of the Administration of Justice Act 1982. That provides as follows:
"Except where a contrary intention is shown it shall be presumed that if a testator devises or bequeaths property to his spouse in terms which in themselves would give an absolute interest to the spouse, but by the same instrument purports to give his issue an interest in the same property, the gift to the spouse is absolute notwithstanding the purported gift to the issue."
It is not in dispute that this section was enacted in order to deal with a mischief identified by the Law Reform Committee in its 19 th Report in 1973. The relevant passages can be found in paragraphs 60 and 62 of the Report, which are in the following terms:
"The unintended life interest
Having stated the majority and minority views on the main issue, we now return to a special case which has concerned us all, namely, that of the unintended life interest, which arises where a home-made will contains some such gift as "I leave everything to my wife and after her death to my children". This sort of provision is frequently met in practice. In spite of cases where the words used permitted a decision to the contrary under the rules about absolute gifts followed by superadded gifts over [see Theobald on Wills, 13 ed. (1971), p.478 and the cases there cited], there is still a real danger of such a gift being construed as a bare life interest for the wife with remainder to the children. In most cases, probably what the testator would have said if the point had been raised with him is that his wife should have full power to dispose of capital and income but if anything was left over on her death it should go to the children. This may be said with the more confidence because in many cases where the point arises when instructions for a will are being taken, the testator says that this is what he wants to happen. When on such occasions it is explained that he cannot do it in quite that way, he will probably in most cases choose to make an absolute gift to his wife or at least to give her a life interest with power to advance capital to her, which are the two nearest legitimate ways of achieving his object. What he probably seldom chooses, and seems most unlikely to want, is for his wife to have a bare life interest with remainder to the children.
…
We all think it desirable that some special ad hoc provision should be made to solve this problem, if only in a rough-and-ready way. The fact that a trust or strict settlement can be created by such a disposition when none is intended is a trap for unadvised testators, and there seems to us to be a social interest in saving them from it. A possible method of obviating the fine distinctions described in paragraph 57 above would be to create, by statute, a presumption as to the meaning of the formula in question, or any similar formula. If this is to be done, we favour a provision which would have the effect that any gift, however expressed, by which a testator leaves property to his wife in terms which, without more, would confer an absolute interest, and then to his issue (whether or not using such expressions as "the rest", or "whatever...
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