Macintyre & Anor v Oliver & Ors

A testamentary gift may be treated as vested or contingent only after construing the will as a whole. Where a prior estate is to determine on one of several events and a gift over is expressed for only one event, the court may, by necessary implication, extend the gift over to the event which actually occurred if the testator must have intended that result.

Words directing that a charitable gift can be used for stated purposes may be permissive rather than mandatory. An absolute charitable gift therefore need not fail merely because the specified facility or activity has ceased, particularly where the will as a whole shows a general charitable intention.

The claimants, trustees of the wills of Violet and Charles Hamblen-Thomas, sought construction of the testamentary trusts and directions identifying the proper recipients of several gifts.

The principal issues were whether a gift over in Violet’s will passed to Victoria when Enid died before Edwin, whether gifts under Charles’s will could be paid to successor or administering NHS bodies and a parochial church council, and whether a gift referring to St Bartholomew’s Hospital failed because its maternity ward and children’s unit no longer operated.

1. Violet’s will. The gift to Enid was contingent on Edwin dying without children and had not vested before Enid’s death. However, applying the principle in Jones v Westcomb, the court could construe the gift over by necessary implication to cover the event that occurred. Having regard to the will and the family circumstances, Violet must have intended Victoria to take if Enid predeceased Edwin and Edwin left no children. The residuary estate therefore passed to Victoria.
2. Hospital legacies. On the evidence, Romsey Community Hospital was the same institution as, or had subsumed the charitable functions of, Romsey Cottage Hospital. The claimants were directed to pay that legacy to the third defendant. The legacy to Blandford Hospital was payable to the sixth defendant, which had succeeded to the relevant hospital functions.
3. Mottisfont church. The gift to the Church of the Parish of Mottisfont was payable to the Parochial Church Council of the Parish of Mottisfont.
4. St Bartholomew’s Hospital. The fourth defendant was entitled to receive the gift. The words directing that it “can” use the money for the maternity ward and children’s unit were enabling and precatory, not mandatory. Construed in their natural and ordinary meaning, in context and in the will as a whole, they conferred a discretion and did not impose a condition causing the gift to fail when those facilities ceased to operate.
5. Alternative basis. Had the directions constituted a trust, the court would have treated the gift as an absolute charitable gift subject to subsequent directions. The rule in Lassence v Tierney, also known as the rule in Hancock v Watson, would have preserved the gift without the need for a cy-près scheme. The parties were directed to submit an order for approval, subject to any further questions requiring a short hearing.