Imprecise drafting in a will is a recipe for litigation and dispute later on. A recent High Court decision on the interpretation of an ambiguous clause in a man’s will illustrates the kinds of issues that can arise.
The man had made a will in 2007 leaving the residue of his estate, amounting to £281,145, to his cousin or, in the event that she predeceased him, to her daughter. His cousin had in fact had two daughters, as well as a son. The man died in 2020 at the age of 91.
As his cousin had died in 2018, an issue arose as to the construction of the relevant clause. His executor sought the Court’s determination as to whether the reference to the cousin’s daughter meant her elder daughter, her younger daughter, both daughters equally or all three of her children equally; whether the clause was void for uncertainty; or whether it had some other meaning. The daughters defended the claim, having agreed that they would share the residuary estate if the Court found that only one of them was entitled to it. The executor, who advanced arguments on behalf of those who would be entitled to the residuary estate if the man had died partially intestate, argued that a gift in such circumstances was void for uncertainty unless it could be shown which child the testator intended to benefit.
The Court noted that the general principles of interpreting wills, outlined by the Supreme Court in Marley v Rawlings, are that the courts will try to find the testator’s intention by identifying the meaning of the relevant words, in the light of the natural and ordinary meaning of those words, the overall purpose of the document, any other provisions of the document, the facts known or assumed by the testator when the document was executed, and common sense. Under Section 21 of the Administration of Justice Act 1982, evidence of the testator’s subjective intention can be allowed in certain limited circumstances.
The Court found that it was self-evident that the man had not wanted his estate to go to the beneficiaries on intestacy. It was common ground that the reference to the cousin’s daughter was ambiguous and evidence of his intention was thus admissible. The evidence showed that he had been closer to his cousin than to any other living member of his family. She had been named as his next of kin when he had gone into hospital, and he had benefited her in an earlier will. The gift to her of his residuary estate reflected that closeness. He had known her daughters reasonably well, and there was no evidence that he knew one of them better than the other. The Court agreed that the use of the word ‘daughter’ meant that an intention to benefit her son could not be inferred.
In the Court’s judgment, the man’s most likely intention was to benefit both of his cousin’s daughters. The clause showed that his primary intention was to benefit his cousin. If she predeceased him, her daughters were to benefit primarily because of their relationship to her. The fact that he was not closer to one of them than another indicated that he did not intend to favour one over the other, as did the fact that the clause did not refer to either of them by name. When reviewing the will, he would have been more likely to notice the omission of a name than the use of singular words in the place of plural ones.