Aitken's Trustees v Aitken

A testamentary disposition must be construed robustly and in a commonsense manner to give effect to the testator’s intention while doing as little violence as possible to the language used. Where the primary gift identifies two named children together with the surviving issue of any predeceased children, it creates a composite body of beneficiaries. A later provision defining the shares of issue does not convert that gift into a substitution limited to the issue of persons who belonged to an original class.

Although estate litigation at first instance may have resulted from the testator’s defective drafting, an unsuccessful appellant must ordinarily pay the costs of the appeal.

A testator directed his trustees to divide the residue of his estate equally between two named surviving children, jointly with the surviving issue of any children who had predeceased him. His grandson was the only child of a son who had died before the settlement was executed. A later part of the clause provided that issue should take per stirpes the share which their parent would have taken if that parent had survived.

The First Division of the Court of Session unanimously held that the grandson was entitled to one-third of the residue. The surviving son appealed. The central issue was whether the residue should be divided between the two named children or among them and the grandson.

1. The appeal was dismissed unanimously. Lord Upjohn delivered the principal speech. Lord Reid, Lord Hodson and Viscount Dilhorne agreed with him, while Lord Guest reached the same conclusion in a separate speech. The grandson was entitled to one-third of the residue.

2. Per Lord Upjohn, the court’s task was to give effect to the testator’s intention by construing his imperfect and inelegant language robustly and in a commonsense way, while doing as little violence as possible to it. Authorities concerning other wills could not determine the meaning of the particular words used.

3. Per Lord Upjohn, the opening part of the residuary clause made a gift to a composite body. That body comprised the two named children and the surviving issue of any children who had predeceased the testator. The grandson fell plainly within that description. There was no true original gift to a class upon which the familiar rule governing substitutionary gifts to issue could operate.

4. The later words concerning the share which a parent would have taken did not exclude the grandson. Per Lord Upjohn, those words could operate literally by addressing the issue of a named child who later predeceased the testator and by quantifying and classifying the issue of other, unnamed children. They also accommodated remoter descendants and directed distribution per stirpes.

5. Lord Guest similarly held that the plain opening gift predominated over the later words defining the beneficiaries’ shares. Reading the later provision as excluding the grandson could defeat the testator’s intention.

6. Per Lord Upjohn, although the costs of all parties at first instance could be paid from the estate because the litigation resulted from the testator’s defective drafting, the ordinary rule required the unsuccessful appellant to pay the costs of the appeal. Viscount Dilhorne expressly agreed with that order.

1. House of Lords: The surviving son’s appeal was dismissed unanimously. The grandson’s entitlement to one-third of the residue was affirmed, and the appellant was ordered to pay the appeal costs.

2. First Division of the Court of Session: On a special case, the court unanimously held that the grandson was entitled to a one-third share of the residue. The alternative question therefore did not arise.