Jersey Unreported Judgments

Probate - application seeking a ruling as to the correct interpretation of clause 7 of the will.

[2013]JRC235

Royal Court

(Samedi)

26 November 2013

Before     :

Sir Michael Birt, Kt., Bailiff, and Jurats Le Cornu and Liston.

 

IN THE MATTER OF THE ESTATE OF NICHOLAS TURQUAND-YOUNG

Advocate M. C. Goulborn for the Representor.

Advocate R. J. MacRae for the Second Respondent.

The other Respondents did not appear and were not represented.

judgment

the bailiff:

1.        This is an application by the Representor ("the Executor") as executor of the estate of Nicholas Turquand-Young ("the testator") seeking a ruling from the Court as to the correct interpretation of clause 7 of the testator's Will dated 16^th December, 2009, ("the Will"). 

The background

2.        The testator died on 5^th September, 2010, domiciled in England and Wales.  On 7^th July, 2011, a grant of probate in respect of the Will was issued out of the Royal Court to the Executor, as one of the executors named in the Will. 

3.        After various pecuniary and specific legacies, the testator dealt with the residue of his estate in clause 7 of the Will as follows:-

"7. AND as for the rest or residue of my estate whatever and wherever situate at the time of my decease I GIVE AND BEQUEATH the same to the following charities equally between them:

(a)       THE MARIE CURIE CANCER CARE,

(b)       NATIONAL SOCIETY FOR CANCER RELIEF,

(c)       MACMILLAN CANCER RELIEF,

(d)       THE MULTIPLE SCLEROSIS SOCIETY,

(e)       SAVE THE CHILDREN FUND,

(f)        HELP THE AGED

(g)       THE SALVATION ARMY OF THE UNITED KINGDOM; AND

(h)       SARAH LEE TRUST

AND I DECLARE that the receipt of the Secretary, Treasurer or other appointed officer shall be sufficient discharge to my Executors in respect of the gifts to the above-named charities."

4.        The testator left a substantial estate.  The Court has been informed that, after payment of the specific and pecuniary legacies and of the debts and liabilities of the estate, the value of the residuary estate is in excess of £9 million.  Almost the entirety of the testator's residuary estate comprises moveable property in Jersey, namely shares in a company incorporated in Jersey which in turn holds an investment portfolio.  Hence the reason that probate was taken out in Jersey and that it is this Court which must wrestle with the issue of construction which has arisen. 

The issue

5.        As can be seen, the testator divided his residuary estate equally amongst eight named charities.  The difficulty arises because, although he used eight names as residuary beneficiaries of the Will, he in fact identified only seven charities.  This is because the second charity which he identified (National Society for Cancer Relief) and the third charity which he identified (Macmillan Cancer Relief) are in fact one and the same.  There is only one charity and this was originally known as the National Society for Cancer Relief.  In 1989 it changed its name to 'Cancer Relief Macmillan Fund'.  In 1997 it changed its name again to Macmillan Cancer Relief.  Finally, on 29^th June, 2006, it changed to its present name 'Macmillan Cancer Support'.  As can be seen therefore it has over the years had four names and the testator included the first and third names (historically) in the Will.  However, it is accepted that there has in truth only ever been one charity, albeit that it has changed its name from time to time. 

6.        In the light of this fact, a question has arisen as to how the residue of the estate should be dealt with.  The second respondent ("Macmillan") contends that it is entitled to two one-eighth shares of the residue because this is what the Will states.  The remaining charities, on the other hand, have contended in correspondence that the testator was clearly under a misapprehension that the National Society for Cancer Relief was something different from Macmillan Cancer Relief and that accordingly there were in truth only seven charities being identified, with the consequence that the residuary estate should be divided equally between the seven charities which in fact existed. 

The applicable principles

7.        The first issue which arises is as to the system of law which should govern the interpretation of the Will.  Fortunately, there is no disagreement in this respect. Rule 156 of Dicey, Morris and Collins, Conflict of Laws (15^th edition) at 1432 states:-

"A will is to be interpreted in accordance with the law intended by the testator. In the absence of indications to the contrary, this is presumed to be the law of his domicile at the time when the will is made."

8.        It is accepted that the testator was domiciled in England and Wales at the time that the Will was made and accordingly the Will should be interpreted in accordance with English law.  

9.        The second issue is as to the applicable principles of construction under English law.  The Court has been provided with two opinions from English Chancery counsel.  The first is from Mr Michael O'Sullivan dated 3^rd April, 2013, and was obtained by the Executor.  Mr O'Sullivan came to the conclusion that the correct interpretation of the Will was that each charity should take an equal share i.e. one seventh.  The second is from Mr Richard Wilson dated 3^rd October, 2013.  He came to the opposite conclusion, namely that Macmillan is entitled to two one-eighth shares with the other charities each taking a one-eighth share. 

10.      Whilst disagreeing as to their application to the facts of this case, there was fortunately no disagreement between counsel as to the applicable principles of construction and accordingly we summarise these comparatively briefly. 

11.      The leading authority remains Perrin v Morgan [1943] AC 399.  In particular, Viscount Simon LC said this at 406:-

"My Lords, 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."

12.      Lord Romer at 420, said this:-

"My Lords, I take it to be a cardinal rule of construction that a will should be so construed as to give effect to the intention of the testator, such intention being gathered from the language of the will read in the light of the circumstances in which the will was made. To understand the language employed the court is entitled, to use a familiar expression, to sit in the testator's armchair. When seated there, however, the court is not entitled to make a fresh will for the testator merely because it strongly suspects that the testator did not mean what he has plainly said ...  In many of the cases to be found in the books the court is reported to have said that the construction it has put on a will has probably defeated the testator's intention. If this means, as it ought to mean, that the court entertains the strong suspicion to which I have just referred, no sort of objection can be taken to it, but if it means that the court has felt itself prevented by some rule of construction from giving effect to what the language of the will, read in the light of the circumstances in which it was made, convinces it was the real intention of the testator, it has misconstrued the will."

13.      Commenting on the dictum of Viscount Simon LC (quoted above) in Perrin, Theobald on Wills (17^th edition) has this to say:-

"15-003           The object is to ascertain the expressed intention of the testator i.e. the intention which the will itself declares either expressly or by necessary implication. As Lord Simon LC put it in Perrin v Morgan:-

...

There are therefore limits to the intentional approach to construction. A court exercising its power of construction is confined to the provisions of the will, and the available evidence of intention. It will not indulge in mere speculation as to what the testator would have provided for had he thought about it. Such speculation comes in two forms.

Speculation: The court cannot rewrite a will

15-004             First, if the will simply does not deal with the situation, then the court cannot supply a provision, however clear the intrinsic evidence of the testator's intention. Apart from its powers under the Inheritance (Provision for Family and Dependents) Act 1975 and its power to rectify a will under the Administration of Justice Act 1982, the court has no power to rewrite a will for a testator after his death in order to achieve a more sensible result or give effect to what the testator would have wished had he not been under a misapprehension. The function of a court of construction is to construe the testator's will, not to make a new will for him. To quote Jenkins LJ in Re Bailey " .... it is not the function of a court of construction to improve upon or perfect testamentary dispositions. The function of the court is to give effect to the dispositions actually made as appearing expressly or by necessary implication from the language of the will applied to the surrounding circumstances of the case."  ...

Speculation: The court does not guess the testator's intention

15-005             The second, more subtle, form of speculation appears where the will contains a provision, but the admissible evidence does not shed light on the testator's intention. In principle, the court should not ascertain the intention of the testator by conjecture or guesswork. Lord Wensleydale (a devout literalist) warned against this in Abbott v Middleton:-

"The use of the expression that the intention of the testator is to be the guide, unaccompanied with the constant explanation that it is to be sought in his words, and a rigorous attention to them, is apt to lead the mind insensibly to speculate upon what the testator may be supposed to have intended to do, instead of strictly attending to the true question, which is what that which he was written means."

Thus where no evidence of intention exists, the court must give the words their ordinary meaning. However, there may be a grey area in cases where it is unclear if the words used by the testator were intended to cover the situation arising, and the temptation to speculate may become irresistible, particularly where the ordinary meaning gives rise to a result that appears capricious."

14.      Thirdly, we should mention some other aspects briefly upon which there is no dispute:-

(i)        Where a bequest is made to a charity which has changed its name (whether before or after the date of the will) the bequest takes effect to that charity notwithstanding that the charity may bear the old name in the will.

(ii)       Where there is an issue as to the identity of a charity (perhaps because of an error in the name as recorded in the will or because there is more than one charity of that name) extrinsic evidence is permitted to assist in establishing the charity which the testator intended to benefit.  In the present case, there is no 'Sarah Lee Trust' as described in clause 7(h) of the Will.  There is a 'Sarah Lees Relief Trust' charity for the assistance of the people of Oldham who are sick or disabled and there is the Sara Lee Trust (the seventh respondent) which is a cancer charity for the Hastings area.  The testator gave the correct address for the latter charity in his written instructions (as to which see below) and he was also related to one of the trustees of that charity.  In all the circumstances it is accepted by all parties that the bequest in clause 7(h) is to the seventh respondent, the Sara Lee Trust. 

(iii)      Where a charity named in a bequest is merged or amalgamated with another charity, the bequest will take effect as a gift to the merged or amalgamated charity which is the successor to the original charity and is the body presently administering the funds of the original charity.  In this case, Help the Aged (being the charity mentioned in clause 7(f) of the Will) was merged with another charity Age Concern on 1^st April, 2009, to form 'Age UK', which is the fifth respondent.  Again it is accepted by all concerned that the bequest in clause 7(f) takes effect as a bequest to Age UK. 

Discussion

15.      Although the other charities have in correspondence contended that the residuary estate should be divided into seven equal parts, with Macmillan receiving the same as each of the other charities, they have chosen not to appear to support that contention before us.  They have all elected to rest on the wisdom of the Court.  This means that we have not had anyone arguing for that interpretation before us.  However, we have had the benefit of Mr O'Sullivan's opinion although it is fair to say that he gave that without having the advantage of seeing Mr Wilson's opinion, and subject to the disadvantage that the arguments being put forward by the English solicitors for Macmillan at that stage in favour of their construction were not the same in certain respects as the reasoning relied upon by Mr Wilson in his subsequent opinion.  Nevertheless we are very grateful to both counsel and have derived much assistance from their respective opinions. 

16.      Mr O'Sullivan referred to the presumption that, where a testator gives two legacies to the same person in the same amount, they are considered to be substitutional and merely repetitious so that the legatee takes only one gift and not both - see Theobald at para 17-020 and 021.  It is however, only a presumption and may be rebutted if the Will shows an intention to give both.  Although the rule is stated as applying to legacies, we see no reason why it should not be equally applicable to residuary bequests.  The basis of the rule would appear to be that the testator is presumed to have made an error.  See for example the observation of Lord Guthrie in Gillies v Glasgow Royal Infirmary (1960) SC 438 at 444 where he said:-

"This is quite different from the case where in a list of legacies in the same deed the name of the same legatee and the same sum as legacy appeared twice, and it is presumed that the repetition is due to forgetfulness on the part of the testator."

Mr O'Sullivan agreed that the presumption was not directly applicable in the present case but, if the basis of the rule was that the Court presumed the testator to have made an error by giving two legacies in the same amount to the same legatee, he posed the question as to whether it was not arguable by analogy that the same result should follow where the testator has made an error in believing that the two named charities were different whereas in fact they were the same entity. 

17.      In summary, he concluded that in his opinion, the testator did not intend to confer two gifts of a one-eighth share on the same charity.  He intended to benefit equally a number of charities.  It happened that two of the names used applied to the same charity.  That must have been the result of ignorance and inadvertence on his part and of the draftsman who implemented his instructions.  Whilst the testator used eight names, he identified in effect only seven charities.  It followed, he thought, that the residue should be divided equally between the charities that were identified as objects.  If the testator had meant to confer a gift on one of the charities that was twice the value of the other gifts, then he would have said so.  

18.      We have carefully considered the arguments in favour of the construction favoured by the other charities.  But we have come to the conclusion that the construction contended for by Macmillan is to be preferred.  We do so largely for the reasons put forward in Mr Wilson's opinion, upon which we have drawn freely.  We would summarise our reasons as follows:-

(i)        It is accepted that the fact that Macmillan has changed its name from National Society for Cancer Relief to Macmillan Cancer Support does not affect the validity of a bequest to National Society for Cancer Relief.  Similarly, a bequest to Macmillan Cancer Relief is valid as a gift to Macmillan even though the correct name is now Macmillan Cancer Support.  As stated already, a change of name does not affect the validity of a gift to a charity.  Thus, if a bequest in the terms of that at clause 7(b) or clause 7(c) stood alone, it would be valid as a gift to Macmillan despite the use of the incorrect name.  

(ii)       That is not the case here.  There are two gifts to Macmillan.  Nevertheless, on its face, the wording of clause 7 is clear.  It gives a one-eighth share of the residue to the National Society for Cancer Relief and a one-eighth share to Macmillan Cancer Relief.  The fact that it transpires that these are both the same entity and that the testator therefore used the wrong name when he referred to the National Society for Cancer Relief - and indeed when he referred to Macmillan Cancer Relief - does not of itself make the bequests meaningless or unclear.  

(iii)      We accept, as described above, that where a testator leaves two legacies of the same amount to the same person, he is presumed to have made an error (whether clerical or through forgetfulness or other reason) as it is presumed that he would not have wished to benefit the same person twice in the same amount.  But the error in the present case is rather different.  It is comparatively easy to infer that a testator would not wish to benefit the same person twice where he would know (if he had noticed it) that it was the same person.  It is by no means so clear that a testator would not wish to benefit a charity with a double share where he is under the mistaken impression that he is dealing with two different charities. 

(iv)      In the present case, we infer that the testator did not know that National Society for Cancer Relief and Macmillan Cancer Relief were the same person and it is simply not possible to know what he would have done had he known of this error.  As stated above, it is clear from the authorities that the Court must not speculate as to what a testator would have done had he not been under a misapprehension. 

(v)       In fact, in our judgment, the construction contended for by Macmillan is more in accordance with the testator's intentions (as they can be ascertained from the Will).  Where a testator makes a charitable gift, he intends that the relevant part of his estate should be applied towards the charitable works carried out by the charity.  From the terms of clause 7, the testator clearly intended that his residuary estate should be divided into equal shares and used to fund the work of what he perceived to be eight different charities.  In particular, he wanted one share to fund work which he believed to be carried out by the National Society for Cancer Relief and one further share to fund the work be believed to be carried out by Macmillan Cancer Relief.  Thus, on any analysis, the testator's intention was that these two-eighths of his estate would be used to fund the work of charities engaged in providing relief from cancer.  The fact that, on Macmillan's interpretation, this two eighths of the estate will fund relief from cancer by the work of one charity rather than two is not contrary to the testator's intention.  On the contrary, it would appear to be consistent with it.  As against that, to divide the estate equally between seven charities would (subject to the point at (vi) below) result in only one seventh of the estate being applied for cancer relief rather than the two-eighths that the deceased plainly intended. 

(vi)      Another way of testing it is that if, as we understand, the Marie Curie Cancer Care  and the Sara Lee Trust are also charities concerned with the relief of cancer, the testator intended four-eighths (i.e. one half) of his residuary estate to be devoted to this purpose.  On Macmillan's interpretation, this will still be the case.  On the rival contention, only three-sevenths of the residuary estate would be devoted to this purpose.  

(vii)     In order to reduce the residuary bequest to seven shares, it is necessary to speculate as to what the testator would have intended had he been told that the two named cancer relief charities were one and the same.  He might have decided to give Macmillan only a single share in those circumstances; but he might well not have because he had intended that one half of his estate should be given to charities which specialised in cancer relief.  It is impossible to know and speculation cannot be used as a proper method of interpreting a will.  

(viii)    Finally, it might be said that, to construe clause 7 in the manner contended for Macmillan, does not place sufficient weight on the use of the word "equally" in the clause because Macmillan will be receiving twice what the other charities have received.  However, we consider that the word must be considered in the context in which it appears, namely that the testator appears to have believed that his estate was to be divided between eight rather than seven charities.  We think that the use of the word "equally" cannot, in the context of this case, override the clearly expressed intention that two-eighths of the estate should go to charities specialising in cancer relief. 

Extrinsic evidence

19.      We have reached our conclusion as to the correct construction of the Will without recourse to any extrinsic evidence of the testator's intention.  Section 21 of the Administration of Justice Act 1982 does permit the introduction of such evidence in certain circumstances.  It provides as follows:-

"21 Interpretation of wills-general rules as to evidence.

(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."

20.      The only provision of section 21 which could conceivably be relevant in this case is that set out in (c).  We have to say that we do not consider that there is any ambiguity which falls within (c).  Nevertheless, in case we are wrong, we propose very briefly to consider such extrinsic evidence as is available. 

21.      The testator's previous Will was dated 16^th June, 2006.  The residuary bequest was in very similar terms to that in the Will and was in the following terms:-

"11. AND as to the rest and residue of my Estate of whatsoever nature and kind and wheresoever situate at the time of my death the same may be I GIVE AND BEQUEATH the same, in equal shares, to the following charities, namely:

(a)       Royal National Institute for the Blind of number 224 Great Portland Street, London W1, England.

(b)       National Society for Cancer Relief, of Michael Sobell House, number 30 Dorset Street, London NW1, England.

(c)       Royal National Institute for the Deaf, of number 105 Gower Street, London WC1, England.

(d)       The Multiple Sclerosis Society of number 4 Tachbrook Street, London SW1, England.

(e)       Save the Children Fund of 157 Clapham Road, London SW9

(f)        Help the Aged, (Registered Charity No. 272786), of 207 - 221 Pentonville Road, London N1 9UZ.

(g)       Macmillan Cancer Relief (Registered Charity No. 261017), of 59 Albert Embankment, London SE1 7UQ.

(h)       The Salvation Army United Kingdom with the Republic of Ireland (Registered Charity No. 214779), 101 Newington Causeway, London SE1 6BN.

AND I DECLARE that the receipt of the Treasurer from time to time of each of the said charities shall be a full and sufficient discharge to my Executors."

22.      As can be seen, it is in very similar terms to clause 7 of the Will save that the Royal National Institute for the Blind and the Royal National Institute for the Deaf have been replaced by Marie Curie Cancer Care and the Sarah Lee Trust.  It is of note that, in the 2006 Will, the testator included the addresses of the various charities.  He used different addresses for the National Society for Cancer Relief and for Macmillan Cancer Relief, which confirms what the Court has already inferred, namely that he believed them to be two different charities.  We were informed by counsel at the hearing that the addresses were correct to the extent that, whilst it carried the name National Society for Cancer Relief, Macmillan was for a time based at Michael Sobell House, 30 Dorset Street and whilst it was known as Macmillan Cancer Relief, Macmillan was based at Albert Embankment (albeit at number 89 rather than number 59).  The 2006 Will confirms the inference we have already drawn, that he believed there to be two separate charities.  It also confirms that in 2006 he also intended to leave two-eighths of his residuary estate to charities dealing with the relief of cancer. 

23.      The second item of extrinsic evidence is a manuscript note prepared by the testator for Advocate Falle when he came to make the Will.  In our judgment it does not take the matter any further.  In the note (which is in the form of a draft will) he lists the same eight charities as appear in the Will, albeit that he gives the addresses whereas these were not included in the Will.  The addresses which he gave were the same as those in the 2006 will in so far as they related to the National Society for Cancer Relief and Macmillan Cancer Relief.  It therefore confirmed his continuing belief in December 2009 that there were two separate charities.  Otherwise we cannot derive any assistance from the manuscript note. 

24.      It follows that there is nothing in the extrinsic evidence which causes us to reconsider the conclusion we had reached without the benefit of such evidence.  

Conclusion

25.      For the reasons we have given we hold that, properly construed, clause 7 of the Will provides that the residuary estate is to be divided into eight equal parts, of which two parts are to pass to Macmillan. 

26.      We order that the costs of the parties should be paid out of the residuary estate. 

Authorities

Dicey, Morris and Collins, Conflict of Laws (15th edition).

Perrin v Morgan [1943] AC 399.

Theobald on Wills (17th edition).

Gillies v Glasgow Royal Infirmary (1960) SC 438.

Administration of Justice Act 1982.