Clark v Clark & Ors

In construing a will, the court may use admissible extrinsic evidence to establish what property a descriptive expression was intended to identify. The court must determine the testator’s meaning at the date of the will, rather than relying on later descriptions used by third parties. A reference to a named farm may include the farmhouse where the language and surrounding circumstances support that construction. The prior disposal of most of the land does not prevent an option from operating over land within the described property that remained owned by the testator at death.

The claimant and defendants were the four children of Kathleen Clark. The claim concerned the construction of clause 9 of her will, which gave the claimant an option to purchase “my farm, known as The Homestead Farm” at its fair market value.

Before Kathleen Clark’s death, she had sold most of the land associated with the farm to the claimant but retained the farmhouse, a cottage within it and surrounding land. The defendants contended that the option was spent because the farm had already been sold and that the expression excluded the farmhouse. The central issue was whether the retained property formed part of the farm described in clause 9.

1. Construction and extrinsic evidence. The words of the will did not determine whether “The Homestead” was included within “my farm known as The Homestead Farm”, or whether the retained surrounding land was included. Extrinsic evidence was therefore necessary to establish what the testatrix meant by the expression in clause 9.
2. Meaning of the description. The 1982 tenancy agreement, made only five months after the will, described the let property as “all that farm known as The Homestead Farm” and expressly included The Homestead Farm Cottage while excluding the main farmhouse. The express exclusion supported the inference that, without it, the farmhouse might be understood as included. The agreement therefore provided strong evidence of the meaning attributed to the expression by the testatrix.
3. The court rejected reliance on the farm sign, the later Ordnance Survey description and the 1989 sale as reliable indications of the testatrix’s intention. The relevant question was how she understood and intended the expression when she made the will.
4. The surrounding circumstances also supported inclusion of the farmhouse. Excluding it would leave the claimant with the farm land and buildings but without the home from which he had conducted the farming activities, despite the evident relationship between the option and the continuation of his livelihood. Clause 6, giving him the household furniture and effects, provided limited additional support.
5. The court therefore concluded that clause 9 included the farmhouse. The issue of how much surrounding land would have been included if the farmhouse had been excluded did not arise for determination.

First instance decision. No earlier appellate decision is stated in the judgment.