His Honour Judge Cadwallader:
Introduction
- Veronica (or Vera) Clarke died on 11 August 2022, and probate of her last will dated 20 October 2014 was on 30 March 2023 granted to the Claimant, Henry Tedford, her nephew, with power reserved to another executor, her brother William Morris, the Sixth Defendant. The will presents numerous difficulties of construction with which this Part 8 claim and this judgment are concerned. Separate proceedings, which have however been case- managed with these, have been brought by William Morris and his sister Leila English (the Fifth Defendant in these proceedings) against Henry Tedford for his removal as executor and the substitution of William Morris and related relief. I am not presently concerned with those proceedings.
- Witness statements of Henry Tedford, Peter Hindley (the Fifteenth Defendant), Yvonne Hindley (the Sixteenth Defendant) Patricia Owen (the Seventh Defendant), William Morris and Leila English were filed in these proceedings. Without objection, and with my permission, reliance was also placed upon witness statements of William Morris and Leila English both dated 11 February 2024 and filed in the other proceedings. There was no application for cross examination of any witness, and I did not consider it appropriate to make an order for cross examination of my own motion. The question whether and for what purposes any of this evidence was admissible is considered in the course of this judgment.
- As well as being the executor of the will, Henry Tedford is, under some potential constructions of it, a potential beneficiary. Given that genuine difficulties arise from the terms of the will, and that the constructions under which he would be a beneficiary potentially arise from those genuine difficulties, I should make it clear at the outset that I regard these proceedings as having been properly brought by him as an executor to resolve those difficulties, since they could not be resolved by agreement. He would be unable as executor safely to distribute the estate without the protection of a court order. That he also has a personal interest in the outcome as a potential beneficiary does not detract from that. Counsel instructed on his behalf was careful not to press for any particular construction of the will, and to the extent that he identified a positive case as to its construction at the hearing before me, that was because I required him to do so. His evidence given as executor was neutral, and kept separate from his evidence given in a personal capacity. That was a proper approach.
- Only Leila English and William Morris took an active part in these proceedings, and they too were represented by counsel, with the helpful effect that differing constructions could be considered in the course of genuine argument. Unfortunately, the family has fallen out over the construction of the will and the administration of the estate, and that is reflected in some of the evidence.
- None of the other Defendants were represented before me, although it is apparent from their witness statements that the Seventh, Fifteenth and Sixteenth Defendants were supportive of the Claimant's case.
The will
- So far as relevant, the will reads as follows.
- I HEREBY REVOKE all former Wills and testamentary dispositions made by me and declare this to be my last Will
2. I APPOINT my brother William Morris… and my nephew Henry Tedford… to be the Executors and Trustees of this my will (hereinafter called 'my Trustees' which expression shall include the Trustee or Trustees for the time being hereof)
- I GIVE the following specific legacies:
(i) to all surviving brothers and sisters of my late husband Albert Edward Clarke 50% of my estate in equal shares
(ii) to all surviving brothers and sisters of myself 50% of my estate in equal shares
(iii) to all my surviving brothers and sisters the proceeds of my saving account held by the Abbey National Bank and in equal shares PROVIDED THAT if any of the forementioned relatives shall predecease me then their share of my estate shall go between their children and in equal shares
- I GIVE DEVISE AND BEQUEATH all my real and personal estate of whatsoever nature and wheresoever situate not otherwise disposed of by this Will or any Codicil to it (including any property over which I may have a general power of appointment or disposition by will) to my Trustees upon trust to sell call in and convert the same into money with full power in their absolute and uncontrolled discretion to postpone such sale calling in and conversion for so long a period as they shall think fit without being responsible for loss
- MY TRUSTEES shall hold the net proceeds of such sale calling in and conversion together with my ready money and any property for the time being remaining unconverted upon the following trusts:
(a) Upon trust to pay thereout all my just debts legacies funeral and testamentary expenses and to any trusts declared earlier and subject thereto
…
- EVERY PERSON who would otherwise benefit under this my Will but who fails to survive me for thirty clear days shall be treated for the purposes hereof and for the purposes of the devolution of my estate as having predeceased me and my estate and the intermediate income thereof shall devolve accordingly to the intent that no person shall be entitled to any intermediate income from my estate or any part of it if he or she dies within that period or acquire therein or in any part thereof a vested interest (or a vested interest subject to defeasance) before the end of it.
The family
- The family tree is complex and, unfortunately, no graphical representation of it was made available. An account of it is necessary in order to understand the issues around the will.
- Veronica Clarke was married to Albert Clarke, who predeceased her. She had no issue. She had six siblings only: in no particular order, they were Leila English (D5) who survived her; William Morris (D6) who survived her; May Tedford, who died on 25 December 2001 leaving two children, Henry Tedford (C) and Patricia Owen (D7); Elizabeth Henderson, who died on 1 January 2015 leaving one child, Maurice Henderson (D8); John Morris who died on 21 October 2005 leaving four children, Ann Morris (D9), Billy Morris (D10), Julie McGregor (who died before Vera leaving one child Katie Morris (now Moore) (D11) and Marie Morris (who died before Vera leaving two children, Christopher Brannan (D12) and Mark Brannan (D13); and Nancy Hindley, who died on 14 September 2014 leaving three children Jeffrey Hindley (D14), Peter Hindley (D15) and Yvonne Hindley (D16).
- Albert Clarke had nine siblings only: in no particular order, they were Audrey Clarke (D1); Alice Smith (D2); Florence Pearson (D3); Denise Clarke (D4); Jean Such, who died on 6 March 2020; Boyde Clarke, who died on 27 August 2008; John Clarke, who died on 29 June 2021; Eric Clarke, who died on 3 February 2013; and Victor Clarke, who died on 19 March 2022. There was no evidence before the court as to whether or not any of his deceased siblings had issue.
The estate
- Vera's estate included the following assets (I take this list from the skeleton argument of Counsel for the Fifth and Sixth Defendants which summarises the evidence).
(1) the property at 50 Mount Crescent, North Park, Liverpool, L32 2BB ("the property"), the net proceeds of sale of which were £147,592.00
(2) the following Santander Accounts:-
(a) 09012835975233 opened 22nd October 2012 'Bank Account':- £14,925.48
(b) 090126 55641556 opened 19.4.2000 'Cash ISA':- £30,150.25
(c) 001520536960529029 ISA:- £115,068.98
(d) X08368243 opened 13.4.1993 'Instant Saver':- £81,875.33
(e) R25158622 opened 22.10.2012 'Flexible Saver' – £79,572.11.
On 22nd October 2014 (the date of the will) the investment accounts of Vera consisted of an ISA SM1080477-002 £13,039.93 and an Investment Account SM1080477-003 £98,982.23. Abbey National branches were renamed Santander in January 2010.
The issues
- Counsel instructed by the Claimant helpfully identified issues of construction to which the will gives rise in the following terms, reflected in the annex to a letter dated 14 December 2023 sent to beneficiaries and potential beneficiaries, and in the claim form itself.
- Clause 3: Does the use of the term, 'specific legacies' in clause 3 cause any problems given the wording of the subsequent sub-clauses?
- Sub-clause 3(i): Under sub-clause 3(i):
a. does the use of the word 'surviving' mean that the descendants of Jean Such, Boyde Clarke, John Clarke, Eric Clarke and Victor Clarke do not participate/benefit at all?
b. do Audrey Clarke (D1), Alice Smith (D2), Florence Pearson (D3) and Denise Clarke (D4) (the 4 surviving sisters-in-law of the Testatrix) benefit under sub-clause 3(i) in equal ¼ shares (to the exclusion of all others)?
c. precisely what assets (if any) fall to be distributed under sub-clause 3(i)?
d. how are the words 'my estate' to be construed?
> should such words be given their ordinary and natural meaning?
> alternatively, should such words be construed restrictively and narrowly as meaning just the proceeds of the Testatrix's house (£147,592)?
> In the further alternative, should such words be construed as meaning everything in the Testatrix's estate, save and except her saving account(s) with Santander?
e. the gift in sub-clause 3(i) is 'in equal shares', rather than 'in equal shares absolutely' - does this carry any relevance at all, and if so, what relevance?
- Sub-clause 3(ii): Under sub-clause 3(ii):
a. does the use of the word 'surviving' mean that the descendants of May Tedford, Elizabeth Henderson, John Morris and Nancy Hindley do not participate/benefit at all?
b. do Leila English (D5) and William Morris (D6) (the surviving brother and sister of the Testatrix) benefit alone under sub-clause 3(ii) in equal ½ shares (to the exclusion of all others)?
c. precisely what assets (if any) fall to be distributed under sub-clause 3(ii)?
d. how are the words 'my estate' to be construed?
> should such words be given their ordinary and natural meaning?
> alternatively, should such words be construed restrictively and narrowly as meaning just the proceeds of the Testatrix's house (£147,592)?
> in the further alternative, should such words be construed as meaning everything in the Testatrix's estate, save and except her saving account (s) with Santander?
e. the gift in sub-clause 3(ii) is 'in equal shares', rather than 'in equal shares
absolutely' - does this carry any relevance at all, and if so, what relevance?
- If the words '50% of my estate' are given a wide/natural meaning, is the consequence that nothing at all passes under sub-clause 3(iii), and that nothing falls into residue?
- Sub-clause 3(iii): Under sub-clause 3 (iii):
a. precisely what (if anything) passes under sub-clause 3(iii)? - what do the words 'the proceeds of my saving account held by Abbey National Bank' actually cover? - moreover:
• Given the use of the aforesaid words, are they capable of attaching to accounts held with Santander?
• Given the use of the aforesaid words and the reference to saving account (in the singular), which of the two Santander savings accounts (£82,365.14 [X08368243] and £79,865.61 [R25158622] ) fall within sub-clause 3(iii)? Alternatively, do both Santander savings accounts pass under sub-clause 3 (iii)?
• Given the use of the aforesaid words and the reference to saving account:
> how should the proceeds of the Santander ISA (£115,068.98 [0015 2053 696 0529029]) be dealt with?
> how should the proceeds of the 2 other Santander accounts (£14,958.04 [090128 35975233] and £30,260.46 [090126 55641556]) be dealt with?
b. Is there a fundamental inconsistency between the use of the word 'surviving' and the gift over to the children of 'the forementioned relatives' (i.e. the various nieces and nephews) if they (the brothers and sisters) have predeceased the deceased? - if there is such an inconsistency, then how is the same to be resolved? Should the sub-clause be read and construed as though the word 'surviving' were omitted, or should the sub-clause be read and construed as though the gift over to the various nieces and nephews were omitted? Alternatively, is the inconsistency to be resolved in some other (and if so, what) way?
c. whether Leila English (D5) and William Morris (D6) (the surviving brother and sister of the deceased) benefit under sub-clause 3(iii) in equal ½ shares (to the exclusion of all others)?
d. whether sub-clause 3(iii) should be read and construed as though the word 'surviving' were omitted (so as to permit distribution along 6 stirpital lines)?
e. whether the use of the word 'children' (rather than 'issue') means that remoter issue (i.e. great-nieces and great-nephews) simply do not participate/benefit at all? - in short, does the use of the word 'children' mean that Katie Morris (D11), Christopher Brannan (D12) and Mark Brannan (D13) (the great-niece and great-nephews of the deceased via the late Julie Morris deceased and the late Marie Morris deceased) do not participate/benefit? – if so, how do the shares of the late Julie Morris (niece) and the late Marie Morris (niece) fall to be dealt with?
f. the gift in sub-clause 3(iii) (both as regards the surviving brothers and sisters and also as regards the gift over to their children) is 'in equal shares', rather than 'in equal shares absolutely' - does this carry any relevance at all, and if so, what relevance?
g. whether sub- clause 3(iii) falls to be construed in some other manner and, if so, what way.
- Clause 3; Whether clause 3 is so badly drafted and/or so ambiguous and/or so unclear that it fails altogether for uncertainty (or some other reason), such that assets of the deceased fall into residue?
- Clauses 4 & 5 - residue: Whether any assets, and if so, precisely which assets actually fall into residue?
- Intestacy: If assets do fall into residue, what is the effect of clause 5 having not been completed? - in short, is there a partial or full intestacy?
- If there is a partial or full intestacy, which specific individuals are entitled to participate?
- During the course of the hearing a further question was identified, namely, was the proviso at the end of Clause 3 (iii) intended to qualify only that sub-clause, or each part of clause 3.
- For a will to give rise to quite so many genuine questions of interpretation is unusual. This will is drafted badly. This dispute has no doubt caused at least some of the parties untold anguish, substantial expense and delay, and destroyed family relationships. The evidence suggests that the will was prepared by an apparently unqualified person holding himself out as a will writer, perhaps for money. This case demonstrates the perils of trying to save expense by using the services of unqualified persons to write wills.
The law
- In attempting to ascertain its meaning, the court will of course consider the terms of the will itself, including its punctuation and layout. The point was well made in Sammut v Manzi [2008] UKPC 58, however, that it is not safe to attach significance to the formatting achieved by a word processor that may well have been operated by a secretary.
- Quite apart from statute, evidence other than direct evidence of a testator's intention is admissible for the purpose of construing a will. Extrinsic evidence, that is, evidence of matters outside the will itself, is admissible to prove the existence of any person or property described in the will, for example: Sherratt v Mountford (1873) 8 Ch.App. 928 at 929. Under the 'armchair principle', evidence of the circumstances around the testator at the date of the will is admissible in construing the will: Boyes v Cook (1880) 14 ChD 53 at 56. That is because the court will infer that she will have had her surrounding circumstances in mind when making her will. Evidence of the testator's relationship with the people claiming to be beneficiaries under the will is admissible: Theobald on Wills 19th ed., 17-032.
- Where the testator has died after 1982, section 21 of the Administration of Justice Act 1982 may apply. It reads 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."
- 'Meaningless' means what it says: if a will has more than one possible meaning, it is ambiguous, not meaningless: Re Williams [1985] 1 W.L.R. 905. Mr Sellers submitted for the Claimant that Clause 3 of the will was meaningless, when read as a whole; and that it should be read as a whole for the purpose of considering whether it was meaningless. I think the position is more nuanced: subsection (two) says that extrinsic evidence may be admitted 'insofar as this section applies.' The meaninglessness of parts of a clause may or may not make the whole of it meaningless, and this section applies on that ground only to the extent that it is meaningless. If a word or phrase used in the will is capable of bearing more than one meaning, then it is ambiguous. Extrinsic evidence, including evidence of the testator's intention, is then admissible to resolve the ambiguity. Evidence, other than evidence of the testator's intention, may show that the language used in part of the will is ambiguous in the light of surrounding circumstances. If evidence shows that the description of an object or subject in the will is applicable to two or more persons or things, and the will does not make it clear which is intended, an ambiguity will arise, for example.
- The starting point is the wording of the will itself, it is only if there is some uncertainty or ambiguity in the will that it is necessary to have recourse to extrinsic evidence: Hodgson v Clare [1999] All ER (D) 359 at 362. The court must thus first consider whether the will is ambiguous and if not, what parts of the will are unclear so as to require assistance in interpretation: Re Williams(deceased), Wiles v Madgin [1985] 1 All ER at 967 b. Millet J in Cook v Saxlova (18th October 1988, unreported) indicates that it is essential that the language of the will should still have more than one meaning after the process of construction was complete: see Halsbury, Laws of England, vol. 102 at 222 n.11.
- As the editors of Theobald on Wills 19th ed., say at 18-001, in construing a will, the object of the court is to ascertain the intention of the testator as expressed in their will when it is read as a whole in the light of any extrinsic evidence admissible for the purpose of its construction. As stated in Perrin v Morgan [1943] AC 399, 406
"The fundamental rule in construing the language of a will is to put on the words used the meaning which, having regard to the terms of the will, the testator intended. The question is not, of course, what the testator meant to do when he made his will, but what the written words he uses mean in the particular case—what are the 'expressed intentions' of the testator."
In Sammut v Manzi [2008] UKCP 58 the Privy Council approved the approach of considering wording of the will first without initial reference to authority, and commented that "little assistance in construing a will is likely to be gained by consideration of how other judges have interpreted similar wording in other cases": Theobald on Wills 19th ed., 18-001. In every case, the Court is concerned with the use of words in their proper context: Marley v Rawlings [2014] UKSC 2. As Lord Neuberger stated,
"[w]hether 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" and
"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."
The court cannot rewrite a will for these purposes and should not engage in mere conjecture or guesswork to ascertain the intention of the testator; and, prima facie, words and phrases used in a will are to be given their ordinary meaning (but if it is clear that the meaning does not reflect what the testator must have intended, the court is not obliged to remain with their ordinary meaning: Blech v Blech [2001] All ER (D) 141) . The will is to be read as a whole.
Construing the will on its face
- The court is not constrained in construing this will by the parties' respective positions.
- The first thing to note is that the will uses clauses, parts of clauses and words familiar to lawyers used to dealing with wills, and in standard form, but it does so in ways which betray a limited understanding of their meaning and function, and of the underlying body of law in relation to which, when used properly, they are formed. They may well have been cut and pasted from some other documents or precedents, perhaps rather old ones, and then amended. Clause 3 is the least standard provision, and the one which gives rise to most of the difficulties.
Estate
- Clause 4 of the will contains a gift of Vera's entire estate to trustees upon trust for sale. The word 'estate' is of general import and on its face covers all the disposable property of the testator, though its meaning may be governed by context: Williams on Wills, 11th ed., 64-19. In this case 'estate' in the phrase 'all my real and personal estate of whatsoever nature and wheresoever situate not otherwise disposed of by this Will or any Codicil' is plainly intended to include all the disposable property of the testator not otherwise disposed of by will or codicil. This is a sweeping up clause which would normally preface a gift of residue, perhaps after specific gifts or pecuniary legacies had been provided for (as contemplated by the phrase 'not otherwise disposed of').
- Clause 5 then directs the trustees to hold the proceeds of sale of her estate (now described in terms of whether it is the proceeds of sale or unsold property) upon trust to pay her debts legacies and funeral and testamentary expenses. The next words 'and to any trusts declared earlier and subject thereto' raise several issues. The first is the reference to trusts declared earlier: although it is, I think, plain that what is denoted are trusts declared outside the will, it is not grammatical. That need not detain us, however, since no such trusts feature in the evidence. The second is the question what is to happen to residue once the debts and funeral and testamentary expenses have been paid: the subclause appears as (a) without there being a succeeding subclause, and 'subject thereto' are words designed to introduce a further trust of residue once those sums have been paid, but no such trust is set out in Clause 5.
24. In my judgment, the answer lies in Clause 3. Clause 3 refers to specific legacies, rather than to residue; it is not subparagraph (b) of Clause 5 and precedes it; it starts with 'I give…to' rather than 'upon trust for'; it repeats reference to the 'estate'; and in Clause 3 (iii) at least it contains a specific gift rather than a gift of residue. So it is clear that that it is not simply been placed out of order in the will: it cannot simply be treated as if it were the misplaced subparagraph (b) of Clause 5. Nonetheless, it seems to me that the provisions in Clause 3 dividing 'my estate' in half echo the reference to the estate of Vera in Clause 4. In my judgment, it has the same meaning, save that common sense requires it to denote the net estate, after payments of debts legacies funeral and testamentary expenses, held under Clause 5.
- The use of the same word in Clause 3 and Clause 4 of the will suggests that it should be understood in the same way in both locations. There is nothing in the will itself to suggest that 'my estate' in Clause 3 should mean less than all the disposable property of the testator (apart from Clause 3(iii) and subject to the debts legacies funeral and testamentary expenses). In particular, there is nothing in the will to suggest that it should be understood as meaning only Vera's house. It was argued on behalf of the Claimant that it might mean only Vera's house, but rightly conceded that this construction could only be supported on the basis of the extrinsic evidence, not the terms of the will itself. The word 'estate' is not apt to describe an ordinary dwellinghouse. Of course, as a matter of fact, the largest part of the residue is the proceeds of sale of the house anyway. I will consider the effect of the extrinsic evidence on this question and other points later in this judgment.
- Accordingly, I consider that the gifts of 50% of the estate of the testatrix in Clause 3(i) and (ii) of the will are gifts of shares in residue. I accept that the beginning of Clause 3 of the will describes them as specific legacies, but that is a simple misdescription, which does not affect the nature or extent of the gift, and reflects the ignorance of the draughtsman rather than the intention of the testatrix.
The subject matter of Clause 3 (iii)
- Clause 3(iii) can be described as a specific legacy. It is plainly not a gift of residue. Effect should be given to its words if possible. I consider that the gifts of shares in 'my estate' in Clauses 3 (i) and (ii) should be read subject to Clause 3(iii), notwithstanding that it follows those provisions within Clause 3, and they are not expressly made subject to it. That is because it can be read as an exception from the estate, because its specificity overrides the generality of the reference to 'my estate', because effect cannot be given to it otherwise, and because it can be understood as a legacy of the kind to which Clause 5 (a) refers, to be paid before the disposition of residue. Thus 'my estate' in Clauses 3 (i) and (ii) means the net residuary estate of the testatrix after payment of her just debts funeral and testamentary expenses and of the gift in Clause 3(iii).
- The subject matter of the gift in Clause 3(iii) is the proceeds of my saving account held by the Abbey National Bank. No issue arises over 'proceeds.' At the date of death, however, Vera had no accounts with the Abbey National Bank. All her accounts were with Santander. In fact, the Abbey National Bank had been rebranded as Santander UK back in 2010, before the will was even written. In my judgment (and I did not understand this to be disputed) the reference is Clause 3(iii) of the will to Abbey National Bank is a simple misdescription, and Vera must have meant Santander.
- The reference in Clause 3(iii) of the will to 'my saving account' is, on its face, to a single account. It would have been a more natural use of language to refer to 'my savings [plural] account,' and it may be a typographical error. Both at the date of death and the date of the will, Vera had more than one account capable of meeting the description of a savings account. There is no reason to distinguish between them on the face of the will, and so an ambiguity potentially arises. Subject to the effect of any extrinsic evidence, I consider that Vera must have meant to refer to all her savings accounts.
- The precise nature of the accounts, and the manner in which Vera used them, is not addressed by the evidence. However, two of the accounts are specifically described as savings accounts, namely X08368243 ('Instant Saver') and R25158622 ('Flexible Saver'), and (subject to the resolution of the ambiguity mentioned in the preceding paragraph) they certainly fall within this provision. The Individual Savings Accounts (or 'ISA's) 090126 55641556 ('Cash ISA') and 0015 2053 696 0529029 ('ISA') also fall within the provision, for the same reason (and subject to the same qualification).
- I do not consider that 090128 35975233, which is simply described as 'bank account' is a savings account falling within the provision, however. It was argued on behalf of the Claimant that a person might refer to all their money as their savings, and so 090128 35975233 should fall within Clause 3(iii) of the will as well, but even if this argument had force (which I do not think it has) I would not accept that a person would ordinarily refer to all their bank accounts as savings accounts unless they actually were savings accounts, which, in this case, they are evidently not. The proceeds of this account therefore fall into residue.
The beneficiaries under Clause 3 (iii)
- The gifts in Clause 3 of the will are all 'to all surviving brothers and sisters' of either Vera or her late husband. That would ordinarily be understood to mean brothers and sisters surviving at the date of death of the deceased, since wills speak from death. A will ordinarily speaks from death, not from the date upon which it was written. While certain siblings of both Vera and her husband had died before the date of her will, the ordinary meaning of 'survive' involves surviving something or someone (compare Inderwick v Tatchell [1903] AC 120, 123), and the only candidate here is Vera herself. Further, it has been held that the ordinary meaning of the word requires that the person who is to survive shall be living at the time of the writer's death and shall continue living afterwards: re Allsop [1968] 1 Ch 39.
- On that footing, Clause 3(i) of the will would be a gift of 50% of residue to Audrey Clark (D1) Alice Smith (D2), Florence Pearson (D3) and Denise Clarke (D4) in equal shares; Clause 3(ii) would be a gift of 50% of residue to Leila English (D5) and William Morris (D6) in equal shares; and Clause 3 (iii) would be a gift of the proceeds of the savings accounts to Leila English (D5) and William Morris (D6) in equal shares as well.
- I remind myself that gifts to a class as tenants in common, as opposed to a gift to named persons as tenants in common, the shares of members of the class dying before the testator do not lapse but go to the other members of the class: see Theobald on Wills, 19th ed., 26-013. Since this is a gift to a class, the effect would have been the same even if the word 'surviving' had been omitted.
- A difficulty arises from the proviso at the end of Clause 3, however. The first question arising from that proviso, which applies 'if any of the aforementioned relatives shall predecease me,' is that all the relatives to which it might refer have to be 'surviving.' As noted, that would ordinarily mean that they have to survive Vera. But if that is what it means, those relatives cannot have predeceased Vera, and the proviso can have no application at all. But the proviso is plainly intended to substitute a gift to children if a relative who would otherwise take is not surviving.
- One way of dealing with this is to regard the proviso as simply a mistake, which cannot have represented what Vera intended. Mr East for the Fifth and Sixth Defendants argued for this construction. The difficulty I find with it is simply the consideration that it must have been intended to do something; and providing substitutionary gifts to children if a parent does not survive the deceased is a natural and common desire expressed in the proviso. I do not accept this submission, therefore.
- Another way of dealing with this might be to attempt to utilise Clause 12 of the will, to read the relevant gift as benefiting brothers and sisters who survive Vera but fail to survive her for 30 days so that they should be treated as having predeceased her, with their children if any taking under the proviso. That reading seems to me to be implausible, however, because the purpose of Clause 12 is presumably to restrict rapid succession, while the purpose of the proviso is presumably to provide within the trusts of the will for substitutionary gifts to children.
- Yet another way of reading this provision is to read 'surviving' as referring, not to survivors of the deceased at the date of her death, but to persons surviving (that is, living) at the date of her will. On that reading, there would be no inconsistency, although it would give rise to further questions, such as whether 'children' included remoter issue (in my view, it plainly would not, and no one argued to the contrary – see below), and whether the children had to be living at the date of death of the deceased, a question as to which there was no argument, and which I do not need to determine, because I would not accept that reading because the reasons for reading 'surviving' as referring to survivors of the deceased are powerful and, to my mind, persuasive; and because the distinction seems artificial when the proviso at any rate is clearly contemplating the date of death of the deceased. It is hard to imagine Vera having intended 'surviving' to apply at any other time without explicitly saying so. (I note, too, that this construction would have the effect of cutting out the children of her sister Nancy, who had died on 14 September 2014, only a few weeks before Vera made her will.)
- One could conclude, as the Claimant suggested, that where the proviso applies (a point which has yet to be considered in this judgment), the word 'surviving' is just to be ignored, on the footing that it does less violence to the language of the will than ignoring the proviso, and it gives full effect to it; and it has the merit of simplicity. But it does not solve the problem, because they would need to be surviving in any event, even if the word were not included.
- The answer is that 'forementioned relatives' does not refer to 'surviving brothers and sisters' but just to 'brothers and sisters.' The share which a brother or sister would have taken had they survived Vera is not to go to the other members of the class (because they do not survive her) but to their children. This too is a gift to a class, so the shares of the children dying before the testator do not lapse but go to the other members of that class of children of their parent. This does no violence to the language of the will and is readily comprehensible as the sort of gift a testator might want to make. I consider this to be the correct construction. Accordingly, I do not consider there to be ambiguity around the meaning of 'surviving.'
- The second question arising from that proviso is whether it qualifies, not only Clause 3(iii), but also (i) and (ii) as well. In 'their share of my estate' the reference to the estate might suggest the proviso was intended to apply to gifts of shares of the estate; and Clause 3(i) and (ii) are gifts of 50% shares of the estate, which might suggest the proviso was intended to apply to those provisions, and not to Clause 3(iii) which is not a gift of a share in the estate at all. But the proviso does not apply to the 50% shares themselves, only to shares which individual relatives would otherwise take, that is, the 'equal shares'; and whatever may be said about the formatting, it is clear that the proviso was intended to apply at least to Clause 3(iii) of the will.
- I consider that the proviso is intended to qualify each part of Clause 3. The formatting on the page might suggest that it qualifies only Clause 3(iii); but formatting is not necessarily a good indicator of intention, as noted above. The reference to 'forementioned relatives' is capable of extending to siblings not only of Vera but also of her late husband. If it had been intended to refer only to 'my brothers and sisters' it might have repeated that phrase: 'forementioned relatives' is a compendious term, which is likely to have been adopted to cover siblings not only of Vera but also of her late husband without tedious repetition. It is relevant that the provision does not refer to 'my forementioned relatives' but to 'the forementioned relatives.' There is no evident reason to distinguish between the gifts of Santander balances on the one hand and the gifts of shares of residue on the other in relation to this point: a gift over is just as sensible for each.
- Clause 3 does not conclude any of its provisions with the word 'absolutely'. The gifts are absolute, nonetheless.
Conclusions
- Accordingly, I conclude, subject to the effect of any admissible extrinsic evidence, that on that footing, Clause 3(i) of the will is a gift of 50% of residue equally to Audrey Clark (D1) Alice Smith (D2), Florence Pearson (D3) Denise Clarke (D4) and the children who survived Vera, if any, of Jean Such, Boyde Clarke, John Clarke, Eric Clarke, and Victor Clarke, each of which children will share equally in the share their parent would have taken had they survived Vera.
- Again, on that footing, Clause 3 (ii) of the will is a gift of 50% of residue equally to Leila English (D5), William Morris (D6), the children of May Tedford (Henry Tedford (C) and Patricia Owen (D7)); the child of Elizabeth Henderson (Maurice Henderson (D8)); the children of John Morris (Ann Morris (D9), Billy Morris (D10)), and the children of Nancy Hindley (Jeffrey Hindley (D14), Peter Hindley (D15) and Yvonne Hindley (D16)), each of which children will share equally in the share their parent would have taken had they survived Vera. Katie Morris (now Moore)(D11), Christopher Brannan (D12) and Mark Brannan (D13)) do not take under this gift.
- Clause 3 (iii) is a gift to the same people as under Clause 3 (ii) of the will.
Evidence of subjective intention
- Peter Hindley's evidence was that he was close to Vera, she was a good friend to him and his family, he knew first-hand how generous and fair she was, and considers that the Fifth and Sixth Defendants' claim that she only wanted the money to go to them would be completely out of character; he recalled that at a family gathering at his sister's in the summer before her death she had told him 'not to worry, everybody will get something from my will'; he expresses disgust at William Morris and Leila English wanting to take her legacy for themselves.
- Yvonne Hindley's evidence was that Vera and she been talking about a will, that after her mother's death in September 2014 she asked Vera how she was leaving it and was told that it was simple: half the house to Albert's family and the other half and her savings equally to her six brothers and sisters, or their children if they had passed. She adds that in her last few weeks Vera said to her 'everyone will get something' and that Henry Tedford would look after everything.
- Patricia Owen's evidence is that Vera and her mother were close, and that Vera helped Patricia Owen herself out many times, and they holidayed together. When they first holidayed together in 2012 Vera told her she had made a will and wanted to leave her money to her siblings, and if her siblings had passed then their share was to go to their children, so that Patricia Owen and Henry Tedford would get their mother's share; and she also wanted 50% of the house to go to her late husband's side of the family. She only brought up the will again when she was in a hospice: she asked Patricia Owen to help Henry Tedford as he was the executor, and told her to tell him when he divides the money he should make just one cheque out to Yvonne (D16), who would divide it out to Peter (D15) and Jeff (D14), and the same for our Johnnie's kids (D9, D10, at least). Vera wanted to share her savings with all of her siblings, alive or passed. In her second witness statement, she says that Vera told her that she had agreed with her husband to leave the house to each of their respective families, and whatever monies she had would go to her side of the family; since May Tedford had died, Vera told her that her mother's money would go to Patricia and Henry. She says Vera was loyal, and fair and loved all her family and would not have left her assets to just two people without acknowledging her deceased siblings.
- William Morris' evidence describes events upon which he places reliance to cast doubt on the evidence given by the witnesses in the Claimant's camp, so to speak; and goes on to say that he and Leila English knew Vera very well, and she never told them that she had any other intention regarding her will than as written; and specifically said to both of them on numerous occasions, that it was her intention to do as was written, and 'as per our interpretation' (that is, that the gift of 50% of the house and all the proceeds of the Abbey National accounts should pass to him and Leila English alone).
- Leila English's evidence is that she was close to Vera, who was not one to talk about her will, so she finds it strange that Henry Tedford is alleging to have had such conversations with her, and doubts his motives. Vera would have been devastated to see Henry Tedford treating her and William Morris like this: she always told her that she would look after her and William. Sadly, both she and William perceive Henry as trying to alter the terms of the will, and go against Vera's wishes, rather than as raising proper issues of doubt about its construction.
- The construction at which I have arrived without consideration of extrinsic evidence as to the intention of the testatrix is broadly that for which the Claimant and the witnesses who support him have contended; while it is contrary to the position for which Leila English and William Morris have argued. To the extent that it is relevant, that tends to support the evidence of the Claimant and his supporting witnesses as to their understanding of her intention; and to suggest that the evidence of Leila English and William Morris is mistaken to the extent that it suggests otherwise. But what they say was said to them (as opposed to what they thought it meant) was not very specific: much of it depends on what they thought the will meant; and Vera has in fact left them money under her will, albeit not as much as they may have hoped. Their evidence on this is not necessarily inconsistent with that of the Claimant and the other witnesses, therefore; but if and to the extent that it is, I prefer that of the Claimant and the other witnesses because, although it is not wholly consistent, it is broadly consistent; and it gives more detail about what was said, when and where.
Admissibility of evidence of subjective intention
- But in any event, I do not regard the witness evidence as to Vera's subjective intention as admissible for the purposes of construing her will. That is because I do not consider the will or any part of it to be meaningless, although it gives rise to difficult issues of construction. The only point of ambiguity is the reference to 'saving account,' as noted above. Subject to the effect of any extrinsic evidence, I state above that I consider that Vera must have meant to refer to all her savings accounts. To the extent there is ambiguity, I accept the evidence of Yvonne Hindley and Patricia Owen that what was intended was all her savings accounts.
If I am wrong
- If I am wrong about the question of admissibility, however, and there is meaninglessness or more ambiguity, the admissible evidence as to this which I would accept would be that of the Claimant and his supporting witnesses, rather than that of the Fifth and Sixth Defendants; and on that footing, I would reach the same conclusion as I have done when leaving the extrinsic evidence of intention out of account.
