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21 November 2018 | Comment | Article by Roman Kubiak TEP

How to interpret ambiguous will clauses – a comment on Tish & Ors v Olley & Ors [2018]


Ambiguous will clauses aren’t always an easy task for probate solicitors, as it can be difficult to ascertain what the deceased intended to happen to their estate. The court’s decision in the recent case of Tish & Ors v Olley & Ors [2018] EWHC 1069 (Ch) will go some way to help in these situations, as the judgment sets out the approach to be taken when faced with an ambiguous will.

Background

When the marriage of Raymond Tish (the “deceased”) and Amanda Tish (the “former wife”) ended, a consent order for financial provision was issued (“the Order”). The Order was accepted in full and final satisfaction of all claims and included:

  • payment of £18,000 a year to the former wife until she remarried or until a further order was made, to be adjusted in line with inflation;
  • payment of £11,000 a year in respect of his two children until they attained the age of 18 or completed college or university education, to be adjusted in line with inflation;
  • payment of school fees; and
  • maintenance of a life insurance policy with the former wife and children nominated as the beneficiaries.

The Order was to be reviewed on retirement or upon the deceased reaching the age of 65. The deceased remarried and in May 2012 he was diagnosed with motor neuron disease. During the early stages of his illness the deceased made a new will.

At the time of making his will, the deceased applied to the Family Court to reduce the amount of maintenance he was paying. He had also stopped paying school fees. A further order was not, however, considered due to the deceased’s death on 10 August 2014. A claim was issued by the former wife and the two children of the marriage under the Inheritance (Provision for Family and Dependants) Act 1975. As part of the proceedings, the court was asked how the following clause of the deceased’s will should be interpreted:

“Clause 11 – Maintenance

I give to my daughter Arabella Camille Tish and my son Revan Elliot Tish as shall survive me free of all taxes Maintenance to be paid in relation to the current Court Order as may be amended in time, therefore if the maintenance is reduced then the reduced level can be accounted for.”

The former wife and children argued that the clause was clear and the “current Court Order” meant the 2007 Order and the estate should be responsible for the continuing payments.

The widow argued that the 2007 Order could not be enforced on death, and that the deceased had applied to the Family Court to reduce maintenance, so the clause could not mean the 2007 Order.

The principles applicable to interpreting the will

When interpreting the clause, the court considered the modern position of contract law (Marley v Rawlings and anor [2015] AC 129), which states that the court must:

  • identify the ordinary meaning of the words,
  • consider the overall purpose of the will,
  • consider any other provisions of the will,
  • consider the facts known or assumed by the parties at the time that the will was executed, and
  • apply common sense.

The court also made reference to the “armchair principle” (Allgood v Blake (1872 – 1873) LR 8 Ex 160, 162) which states that “The general rule is that, in construing a will, the court is entitled to put itself in the position of the testator, and to consider all material facts and circumstances known to the testator with reference to which he is to be taken to have used the words in the will, and then to declare what is the intention evidenced by the words used with reference to those facts and circumstances which were (or ought to have been) in the mind of the testator when he used those words.”

Decision

When applying these principles to the construction of clause 11, the court rejected the arguments put forward by the widow and agreed with the proposals by the former wife and children. This was based on the natural and ordinary meaning of the words and common sense, which would see that reference to the “current Court Order” was reference to the 2007 Order. The court stated that it was clear the deceased intended to make a gift to his two minor children and the will had the effect of carrying forward after his death the maintenance including the school fees that he had agreed to provide for them in the 2007 Order.

Should you require advice on these topics, please contact our Contested Wills, Trusts and Estates Department.

Author bio

Roman Kubiak is a partner and head of the market leading Contested Wills, Trusts and Estates team.

He advises across the whole spectrum of private wealth disputes, with a particular focus on high value, complex and cross-border disputes including: trust disputes, breach of trust claims and applications to remove trustees; will disputes, particularly those with an international element; claims under the Inheritance (Provision for Family and Dependants) Act 1975; and claims for equitable relief under proprietary estoppel, constructive trusts and resulting trusts.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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