Jump & Anor v Lister & Anor

A will must be construed as a whole, giving its words their natural meaning in their documentary and factual context. Clear wording cannot be displaced by the testator’s apparent intention, common sense or an undesirable practical consequence. An omnibus survivorship clause referring to the testator’s estate and to “any person” may therefore apply to a primary gift to a spouse, unless the will excludes that result. Where a drafting mistake is established and the required correction is clear, rectification may be available, but construction cannot be used to rewrite the will. The costs of a construction claim defended for solicitors’ own interests, rather than for the benefit of the estate, may be ordered against those solicitors.

The claim concerned the construction of mirror wills made by John and Mable Winson. They were found dead in circumstances in which the order of death could not be determined. Under section 184 of the Law of Property Act 1925, Mr Winson, being younger, was deemed to have survived his wife.

The issue was whether the survivorship clause in Mable Winson’s will, providing that her estate was to be divided as if any person dying within 28 days had predeceased her, applied to her primary gift of residue to her husband. If it did, the alternative gifts, including substantial pecuniary legacies, would operate under both wills. If it did not, Mable’s estate would pass to Mr Winson’s estate. The court also considered the consequential costs.

1. The court construed the will in accordance with the approach stated in Sammut v Manzi [2008] UKPC 58 and Marley v Rawlings [2014] UKSC 2: the document had to be read as a whole, by reference to natural and ordinary meaning, purpose, other provisions, relevant surrounding circumstances and common sense. Direct evidence of actual intention was admissible only where section 21 of the Administration of Justice Act 1982 applied.

2. The survivorship clause was clear and unambiguous. “My estate” bore the same meaning as at the beginning of the residue clause, and “any person” included any person named in the will, including the surviving spouse. Nothing in the will confined the clause to the alternative gifts or excluded its application when determining whether the primary gift had failed.

3. The defendants’ construction was circular because it assumed that the survivorship clause did not apply when deciding whether the primary gift had failed. The oddity of duplicate gifts and the apparent intention that legacies should be paid only once could not contradict the clear wording. The primary gift to Mr Winson therefore failed, and the alternative provisions applied.

4. The court considered whether the apparent drafting mistake could be corrected by construction under the principles discussed in Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38. It concluded that correcting the will would require an inference from subjective intention. That issue belonged, if available, to a separate rectification claim under section 20(1) of the Administration of Justice Act 1982, not to the present construction claim.

5. The claimants succeeded on construction. The costs case was materially different from the estate-benefit category described in Re Buckton [1907] 2 Ch 406. The defendants had defended the construction for their own interests or those of their insurers, not for the benefit of the estate. Costs therefore followed the event and the defendants were ordered to pay the costs of the Part 8 claim.