Rogers, Re In the Estate of

A will appointing the partners of a solicitors’ firm as executors may, in context, extend to profit-sharing members of a limited liability partnership that has succeeded to and continues the firm’s practice. The court should adopt a practical and common-sense construction that gives effect to the testator’s intention. Technical distinctions between a partnership and a limited liability partnership will not control where the will focuses on the persons conducting the practice and treats changes in the business vehicle as secondary. The appointment extends to profit-sharing members, but not automatically to salaried or non-profit-sharing members.

The testatrix appointed the partners of a named solicitors’ firm, or of a firm succeeding to and carrying on its practice, as executors and trustees. The firm later merged and subsequently converted into a limited liability partnership. Two members of the LLP sought a declaration that the LLP was the successor firm and that they qualified as partners under the will.

The Probate Registry had refused the grant on the basis that an LLP was not a firm and its members were not partners. The issue before the Chancery Division was whether the will’s language, construed in context, embraced profit-sharing members of the successor LLP.

1. The application succeeded in principle. On the true construction of the will, probate could be granted to applicants who were profit-sharing members of the LLP. The evidence did not establish whether the applicants satisfied that condition, so the LLP could nominate qualifying members in their place.

2. The expression “firm” ordinarily denotes an unincorporated partnership, and section 1 of the Limited Liability Partnership Act 2000 establishes that an LLP is a corporate body separate from its members. Its members are not technically partners. Those meanings do not determine the construction of the will where the context indicates otherwise.

3. The wording was adopted from In re Horgan [1971] p. 50. The court applied the practical approach in that decision, under which a will is construed as appointing the relevant individual solicitors and their successors rather than an unincorporated firm as such.

4. The testatrix was concerned with the persons carrying on the solicitors’ practice for profit. The identity of the legal vehicle through which the practice was conducted was of secondary importance. The ordinary use of “firm” could, depending on context, include a company, as explained in Re Orwell’s Trust [1982] 1 WLR 1337. The contextual approach was also consistent with Oswald Hickson Colliers & Co (a firm) v Carter Ruck [1984] AC 720.

5. The qualification “partner” meant a profit-sharing partner. Transposed to an LLP, “member” therefore meant a profit-sharing member, not merely a salaried member or a person held out as a partner. Testators were advised to make express provision for conversion to an LLP and for the possible appointment of employee members.