Tish & Ors v Olley & Ors

Wills are interpreted contextually, by identifying the testator’s intention from the natural and ordinary meaning of the words, the document’s purpose and provisions, known circumstances and common sense. The court may apply the armchair principle by considering material facts known to the testator. A reference in a will to maintenance payable under an existing court order may create an independent testamentary gift, even where the order itself ceased on death. The reference may be construed by identifying the position at the date of the will and allowing for a variation made before death. A gift of continuing maintenance is not necessarily discharged or reduced by life-insurance proceeds unless the will shows that intention.

The claimants sought provision under the Inheritance (Provision for Family and Dependants) Act 1975 from the estate of Raymond Tish. Master Clark directed a preliminary issue concerning the construction of clause 11 of Mr Tish’s will. The clause referred to maintenance payable under a 2007 family-court order for his two children and stated that any reduction in maintenance could be taken into account. The central issues were whether clause 11 was operative after the order ceased on death, whether it was void for uncertainty, and whether life-insurance proceeds discharged or reduced the testamentary provision.

1. The court decided the preliminary issue in favour of the claimants. Clause 11 created a testamentary gift of continuing maintenance for Revan and Arabella Tish.

2. Applying the contextual approach stated in Marley v Rawlings [2015] AC 129, the court considered the natural and ordinary meaning of “give” and “maintenance to be paid”, the purpose of the will, its other provisions, the circumstances known to Mr Tish and common sense. The armchair principle in Allgood v Blake (1872 – 1873) LR 8 Ex 160 was also applied.

3. The reference to the current court order meant the 2007 Order. It did not make the gift conditional on that order surviving Mr Tish’s death. Although the order ceased on death under sections 28 and 29 of the Matrimonial Causes Act 1973, clause 11 was an independent gift intended to carry forward the children’s maintenance and education provision.

4. The reference to a possible reduction addressed a variation made between the date of the will and death. It did not create uncertainty by requiring a post-death variation, which was legally impossible. The court distinguished Anthony v Donges [1998] 2 FLR 775, because clause 11 supplied a clear measure by tying the gift to the amounts in the 2007 Order.

5. The Zurich life-insurance payment did not discharge or set off the children’s testamentary maintenance. The will showed an intention to provide for the children under clause 11 in addition to the insurance payment. The gift was therefore £11,000 per year for each child, payable until age 18 or completion of tertiary education to first-degree level, whichever was later, indexed annually by the Retail Prices Index, together with school fees and reasonable extras.