Re Doland's Will Trusts
| Jurisdiction | England & Wales |
| Court | Chancery Division |
| Date | 1969 |
| Year | 1969 |
Will - Construction - Intention of testator - Remoulding language - Residuary gift - Proviso for gift over “If any of the trusts shall fail” - Will witnessed by beneficiary's wife - Gift made null and void - Whether failure of gifts to other beneficiaries - Whether gift over under proviso of void share or whether undisposed of -
The clause by which a testator disposed of his residuary estate in shares to a number of named persons, ended with the proviso that “if any of the trusts of any of the shares … shall fail my trustees shall stand possessed of my residuary estate for Mr. and Mrs. C …. absolutely.” The wife of L., one of the named persons, witnessed the will so that the bequest to him was null and void by the operation of section 15 of the
Held, (1) that it was first necessary to construe the clause as a whole without regard to the events which actually occurred and then to decide whether the application of section 15 of the ActF1 had caused the trusts of all the shares to fail within the meaning of the proviso. Accordingly, on its true construction, the clause showed a clear intention by the testator to benefit a large number of persons with which the proviso, read literally, would conflict, and the language of the proviso should therefore be remoulded so as to give effect to the testator's intention, namely, that only that share of his residuary estate which failed should go to Mr. and Mrs. C. (post, pp. 617B, C, 620C).
(2) That the words in section 15 of the Act making a gift “null and void” meant that the will had to be treated as though that gift was not contained in it at all, and, therefore, the gift to L. of a share in residue being null and void, there was no trust of this share declared by the clause which failed within the meaning of the proviso so as to carry this share to Mr. and Mrs. C., and the will should be read as though this share was undisposed of (post, p. 621E–G).
The following cases are referred to in the judgment:
Allgood v. Blake (
Aplin v. Stone [
Bird v. Luckie (
Jull v. Jacobs (
Key v. Key (
Wilkinson v. Adam (
The following additional cases were cited in argument:
Buckton's Settlement Trusts, In re [
Fleetwood, In re (
Grey v. Pearson (
Guinness's Settlement, In re [
James's Will Trusts, In re [
Royce's Will Trusts, In re [
Townsend's Estate, In re (
Whitrick, Decd., In re [
ADJOURNED SUMMONS
By clause 9 of his will dated October 12, 1965, the testator, George Broughton Doland, gave his residuary estate on trust in stated percentages for a number of named persons subject to the proviso that:
“If any of the trusts of any of the shares aforesaid of my residuary estate shall fail my trustees shall stand possessed of my residuary estate for Mr. and Mrs. Harold Clarke … aforesaid in equal shares absolutely but should either of them the said Mr. and Mrs. Harold Clarke predecease me then for the survivor of them absolutely or should they the said Mr. and Mrs. Harold Clarke both predecease me then for such of their children living at my death absolutely and if more than one in equal shares absolutely.”
The testator died on December 22, 1965, probate being granted on March 2, 1966. Mr. and Mrs. Clarke both survived him.
One of the witnesses to the will was the wife of one of the named persons and doubts arose as to the true effect of the proviso to clause 9. The trustee of the testator's will by this summons asked the court to determine inter alia whether the residuary estate of the testator was held (a) on trust for Mr. and Mrs. Harold Clarke absolutely; or (b) on trust for all the named persons (excluding the person whose wife had witnessed the will, the share of that person to be held for Mr. and Mrs. Clarke absolutely), or (c) for all the named persons, the share of the person whose wife had witnessed the will being held in trust for those entitled to any property of the testator as to which he died intestate.
A. J. Balcombe for the plaintiff trustee.
N. C. Browne-Wilkinson for the first and second defendants, persons beneficially interested in the residue.
Oliver Lodge for the third and fourth defendants, Mr. and Mrs. Clarke, who claimed to be entitled to the whole of the residue.
The Treasury Solicitor was not represented.
BUCKLEY J. In this case I have to consider the residuary disposition contained in clause 9 of the will of Mr. George Broughton Doland, who made that will on October 12, 1965, and died on December 22 of the same year. He disposed of the residue in percentages, giving his property not otherwise disposed of to his trustee on the usual administrative trusts and defined the resulting fund as “my residuary estate.” His trustees were directed to stand possessed as to 5 per cent. of the residuary estate on trusts for named persons in equal shares absolutely, or should either of them predecease him, then for the survivor of them absolutely. He gave 5 per cent. of his residuary estate to a husband and wife in equal shares absolutely or if either of them should predecease him to the survivor absolutely, or, should both predecease him, then to their two named children if they should survive the testator and attain the age of 21 years, and if more than one in equal shares absolutely. He continued giving percentages until he aggregated the 100 parts of his residuary estate, sometimes to named persons absolutely, sometimes to named persons or, should they predecease the testator, to their children living at the testator's death, sometimes in other ways. He gave 1 per cent. to a named person if still in his employment at his death absolutely.
It is sub-clause (31) which gives rise to the difficulty in this case. He gave 2 per cent. of his residuary estate to a Mr. William Frederick Lewis absolutely. Unfortunately the testator failed to have regard to the provisions of section 15 of the
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Re Segelman, Decd
...[1952] 3 D.L.R. 833 Coulthurst, decd., In re [1951] Ch. 661; [1951] 1 All E.R. 774, C.A. Doland's Will Trusts, In re [1970] Ch. 267; [1969] 3 W.L.R. 614; [1969] 3 All E.R. 713 Geering, decd., In re [1964] Ch. 136; [1962] 3 W.L.R. 1541; [1962] 3 All E.R. 1043 Gillam v. Taylor (1873) L.R. 16 ......
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Judi Barbara Bonham v Carole Stringer
...authorized and bound to construe the writing accordingly.” 10 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 ......
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Judi Barbara Bonham & Anor v Carole Stringer & Ors
...authorized and bound to construe the writing accordingly." 10. The same idea was expressed in more recent times by Buckley J in Re Doland’s WT [1970] Ch 267, 272C, as “An error in drafting is sometimes clearly apparent from a grammatical defect, when for instance some word or words have bee......
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Westland v Lilis
...my attention were R v Public School Trusts, [1963] Ch, 275, R v Buckden Settlement Trusts, [1964] Ch, 497 and Re Doland's Will Trusts, [1970] Ch, 267section 21 of the Administration of Justice Act 1982 to admit extrinsic evidence including evidence of the testator's intention to assist in i......
