Thomas & Ors v Kent

In construing a will, the court must identify the testator’s intention from the words used in their factual and family context. A rigid application of earlier constructional rules is inappropriate where it produces an arbitrary result inconsistent with the language of the will. A reference to siblings in the plural may include siblings who had already died when the will was made, particularly where excluding them would make the wording inexplicable and defeat the evident purpose of a family trust.

Where a substitution clause may transfer an entitlement from deceased primary beneficiaries to their children, the court must address whether substitution requires the children to survive until distribution. That issue should not be decided without proper representation of the competing interests.

The trustees of a Welsh farmer’s estate sought directions on the distribution of a residuary trust created by a 1944 will. The primary trusts had failed when the testator’s granddaughter died without issue in 1992. The dispute concerned the meaning of a gift to the testator’s brothers and sisters, excluding one brother, with substitution for the children of any deceased sibling.

HHJ Weeks QC rejected a construction limited to siblings living when the will was made and directed distribution on an eight- or nine-share basis, with children taking in substitution for their parents. The trustees appealed, contending for the alternative construction. The Court of Appeal also identified the unresolved question whether substituted children had to be alive at the date of distribution.

1. Appeal dismissed, but order set aside and matter remitted. The judge was right to reject the construction that limited the gift to siblings living at the date of the will. The reference to brothers in the plural could not fairly be treated as referring only to William, even if he was then alive. It was more consistent with the language and circumstances to include brothers and sisters who had already died.
2. The court should construe the will in its factual setting and give the words their natural meaning. It was inappropriate to attribute to the testator knowledge of the technical reasoning in Re Hannam. The ultimate trust was a default provision intended to return the property to the testator’s family as a whole, without an unnecessary distinction between siblings who had predeceased and those who survived him.
3. The declaration in favour of paragraph (b) did not necessarily follow. A separate issue remained: whether the children entitled by substitution had to be living at the date of distribution, rather than merely having survived the testator. Lord Justice Chadwick considered it more likely in principle that substitution operated in favour of the living. Lord Justice Lloyd considered that there was a substantial case for survival to distribution being required. The court expressly declined to decide the issue because the competing interests had not been properly represented.
4. The relevant parts of the order were set aside and the matter remitted to HHJ Weeks QC for reconsideration, including directions for appropriate representation. Lord Justice Thomas agreed without expressing a wider view on the applicability of principles used in construing commercial contracts and notices. The court noted the constructive use of Rules 8.2A and 19.7 to secure representation in trust and estate proceedings.

• Court of Appeal (Civil Division): appeal from the Chancery Division, Bristol District Registry, dismissed. The judge’s construction excluding paragraph (a) was upheld, but the relevant parts of the order were set aside and remitted for further consideration.
• Chancery Division, Bristol District Registry: HHJ Weeks QC made an order on 8 July 2005 directing distribution on the basis of paragraph (b) of the particulars of claim.