Howard v Howard-Lawson BT

A name-and-arms clause in a will must be construed as a whole, by identifying the testator’s intention from its language, the will and relevant surrounding circumstances. There is no presumption for or against forfeiture, although a forfeiture provision may be confined to matters clearly within its terms. Where an heir chooses to apply for a Royal Licence to adopt both the name and arms, those obligations form a single entity. An application made through the College of Arms within the specified period, followed by endeavours to obtain the Licence, satisfies the alternative requirement even if the Licence is granted later. The heir need not independently adopt the name within that period.

This was an appeal by Philip Howard against a preliminary construction decision of Proudman J, reported at [2011] EWHC 63 (Ch). The dispute concerned a name-and-arms clause in the will of Philip John Canning Howard, which required an heir to adopt the Howard name and arms or apply for and endeavour to obtain a Royal Licence, subject to forfeiture.

Sir John Howard-Lawson applied to the College of Arms within the prescribed year. The petition was presented and the Royal Licence was granted after that year had expired. Philip argued that Sir John was independently required to adopt the Howard surname within the year. Sir John argued that his application was sufficient and that the name and arms obligations operated together. The central issue was whether the failure to adopt the name independently caused forfeiture.

Appeal dismissed. Arden LJ gave the leading judgment. Black LJ and Kitchin LJ agreed.

1. Construction. A name-and-arms clause in a will is construed in the same manner as any other testamentary provision. The court identifies the testator’s intention from the language used, read as a whole and in the context of the will and circumstances reasonably expected to have been known to the testator. There is no presumption for or against forfeiture, but it may be appropriate not to extend a forfeiture provision to matters that are not clearly within it, applying the approach in Bromley v Tryon [1952] AC 265 and Grant v Grant (1870) LR 5 CP 727 (para. [13]).
2. Royal Licence route. The word apply has a wider meaning than presenting a petition to the Queen. Instructing the College of Arms to seek the necessary Licence was sufficient. The obligation to endeavour to obtain the Licence arose after the application. The clause did not require presentation of the petition within the prescribed year. Austen v Collins (1886) LT 903 did not assist the contrary argument (paras. [14], [16]).
3. Name and arms as one obligation. Where the heir chose the Royal Licence route to obtain authority for both the name and arms, the obligations operated as a single entity. The heir was not required to adopt the surname independently within the year. Re Neeld deceased [1962] Ch 643 was distinguishable because it concerned uncertainty and different wording. Re Croxon [1904] 1 Ch 252 illustrated why the will’s provision for a failed Licence did not require a separate name change in this case (paras. [18], [25]–[30]).
4. Application and disposition. The relevant circumstances were tested at the end of the specified year (para. [12]). Sir John had applied to the College of Arms within that year and thereafter endeavoured to obtain the Licence. The later presentation of the petition and grant of the Licence therefore did not cause forfeiture. The court also assumed that an heir must know the clause before he can neglect or refuse to comply, referring to Re Quinton Dick [1926] Ch 992 and Re Hughes [1943] Ch 296 (para. [27]).

• Court of Appeal (Civil Division): Appeal dismissed.
• High Court of Justice (Chancery Division): Proudman J rejected the appellant’s construction of the name-and-arms clause and determined the preliminary issue, judgment [2011] EWHC 63 (Ch).