Judi Barbara Bonham v Carole Stringer

Hearing dates: 10 December 2024

This judgment was handed down remotely at 10:30 am on 17 January 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

INTRODUCTION

On 10 December 2024 I heard a claim made under CPR Part 8, on a claim form issued on 18 April 2024, for the rectification of the will of David Arthur Richard Seabrook deceased (“the testator”), or alternatively a declaration as to its true construction. At the end of the hearing, I said that I would make a declaration as to the true construction of the will in the sense sought by the claim, which meant that I did not need to consider the question of rectification. I said I would give reasons in writing for my decision. These are those reasons.

BACKGROUND

The testator died on 27 February 2019, leaving neither spouse, civil partner nor issue. His will, professionally drafted by a firm of solicitors, was dated 22 November 2017. The will appointed the partners in that firm as executors and trustees, expressing the wish that not more than two of them should prove it. Probate of this will was granted to the first claimant, one of the partners in that firm, on 2 March 2020, with power reserved to the other executors. The second claimant is another partner in the firm. The claim is supported by an affidavit of the first claimant dated 16 January 2024, and an affidavit from Niamh Marie McAlonan, the solicitor at the law firm (and then co-head of the private client department) who drafted the will, dated 5 April 2024.

The defendants are five beneficiaries named in the will (the first to fifth defendants), a great nephew who was named as a beneficiary in a previous well but not in this one (the sixth defendant), and another great-niece of the testator (the seventh defendant). The first six defendants confirmed that they did not wish to contest the claim. The seventh defendant did not respond to correspondence, but a certificate of service was filed which showed that service of these proceedings was deemed effected on her on 22 November 2024.

None of the defendants has filed any evidence. Accordingly, the only evidence before the court is that of the claimants. I did not require the witnesses to be tendered for cross-examination, because, having read the two affidavits (of two solicitors), I formed the view that they were convincing on their face and that, in the absence of any person wishing to cross-examine, there was therefore no need, especially in a case turning in the first instance on a question of construction of a document.

THE WILL

Clause 6 of the will dated 22 November 2017 contains a gift of the residue of the testator's estate to his trustees to hold on the trusts contained in the will. That residue is called “the Trust Fund”. Clause 7 sets out those trusts. It is this clause which has led to this claim. It reads as follows:

“ MY TRUSTEES shall hold the Trust Fund ON TRUST to divide it or to treat it as being divided into four parts of equal value and to hold them on the following trusts and subject to the following provisions:

(a) My Trustees shall hold those parts ON TRUST absolutely

(i) as to one part for such of CAROLE STRINGER of [address] and JOHN STRINGER of [address] as shall survive me and if more than one in equal shares absolutely

(ii) as to one of them for such of LISA ELLIS of [address] and her sister SALLY WATHAN of [address] as shall survive me and if more than one in equal shares

(iii) as to one of them for MARGARET WEBB of [address] PROVIDED that if she dies before me or remarries during my lifetime for JOSEPH GILBERT of [address]

(b) Provided also that if the trusts declared by 7(a) above in respect of any part or parts of the Trust Fund should fail then that part or parts shall accrue to the other part or parts (and equally if more than one) the trusts of which have not failed and be held on the trusts and with and subject to the powers and provisions affecting such other part or parts”.

It will be seen that, although in the second line of the clause reference is made to division of the Trust Fund into four equal parts, the clause goes on to deal with only three of such parts. The claimants are concerned that, if the clause were construed literally, it might result in a partial intestacy whereby one quarter of the Trust Fund was held on trust for the next of kin of the testator at the date of his death. Accordingly, this claim seeks either a declaration that on the true construction of the will the Trust Fund is divided into only three equal shares, or an order that the will be rectified so as to replace the word “four” in the second line of clause 7 with the word “three”.

THE LAW

The construction of wills

The old law

The law on the construction of wills has developed considerably in recent times. Originally, there were a great many detailed rules of construction laid down in the caselaw, and even a whole textbook devoted to them (Hawkins, A Concise Treatise on the Construction of Wills, 1863, now in its fifth edition, 2000). These rules were the product of a healthy respect in earlier times for the testator's ability to make testamentary gifts that might seem capricious or even foolish. In Bird v Luckie (1850) 8 Hare 301, 306, Knight Bruce V-C said that:

“no man is bound to make a will in such a manner as to deserve approbation from the prudent, the wise, or the good. A testator is permitted to be capricious and improvident and is moreover at liberty to conceal the circumstances and the motives by which he has been actuated in his dispositions.”

One such rule of construction was that expressed in Constantine v Constantine (1801) 6 Ves 100, 102, by Sir William Grant MR:

“1 know no rule I can adopt more safely than that which 1 did adopt in ( Sims v. Doughty 5 Ves. 243. See the note, 247), and upon which 1 have always acted, viz. to give effect to every word of the will; provided an effect can be given to it not inconsistent with the general intent of the whole will, taken together …”

The reference in the final proviso to consistency with the rest of the will is important, and was developed by Knight Bruce LJ, sitting in the Court of Appeal in Chancery, in Key v Key (1853) 4 De G M & G 73, 84:

“In common with all men, I must acknowledge that there are many cases upon the construction of documents in which the spirit is strong enough to overcome the letter; cases in which it is impossible for a reasonable being, upon a careful perusal of an instrument, not to be satisfied from its contents that a literal, a strict, or an ordinary interpretation given to particular passages, would disappoint and defeat the intention with which the instrument, read as a whole, persuades and convinces him that it was framed. A man so convinced is authorized and bound to construe the writing accordingly.”

The same idea was expressed in more recent times by Buckley J in Re Doland's WT [1970] Ch 267, 272C, as follows:

“An error in drafting is sometimes clearly apparent from a grammatical defect, when for instance some word or words have been obviously omitted by accident. Or it may be manifest from the context that a testator has at a particular point used a mistaken word or a wrong name. In such cases if the court is clear about the true intention, it will, as an exercise of interpretation, give effect to that intention and for that purpose will remould the testator's language.”

One old rule of the construction of wills was that circumstantial evidence was always admissible as an aid to construction. The court was – and still is – entitled to sit in the testator's armchair, as it were, and see things as he or she saw them at the time that the will was made: Boyes v Cook (1880) 14 Ch D 53, 56. By contrast, another old rule was that direct extrinsic evidence was not admissible on questions of construction of wills, except for the purpose of removing a latent ambiguity in the language used, such as a gift of a described thing ( eg “my Somerset farm”) or to a described relative ( eg “my cousin Emily”), which on the face of it looked clear enough, but of which the testator in fact had two (or more) such things or relatives: see eg Re Hubbuck [1905] P 129.

The Administration of Justice Act 1982

In relation to testators dying after 1982 (as this testator did), this latter rule was considerably relaxed by the Administration of Justice Act 1982, section 21. This provides as follows:

“(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.”

It will be seen that, in order to admit direct extrinsic evidence to assist in the interpretation of a will, including evidence of the testator's intention, one or more of the conditions in sub-s (1) must first be established. Condition (b) in effect extends...