Taulbut & Ors v Davey (As Executrix of the Deceased)

A document may be incorporated into a will by reference where it existed when the will was executed, the will referred to it as an existing document, and the document was identified with sufficient certainty. Incorporated wording must nevertheless be construed objectively, in its documentary and factual context. Precatory language, including a direction that a beneficiary “may receive” a sum only if sufficient charitable funds remain, does not create an enforceable legacy. Directions expressed as possible courses of action and requiring trustees to discuss options and reach a sensible decision are not legally binding obligations. A trust should not be prevented from receiving intended property merely because the identity of its trustees is disputed. Removal of a personal representative depends principally on the welfare of the beneficiaries and the proper administration of the estate.

The deceased left a manuscript will and a contemporaneous document headed “Letter of Wishes”. Her executors sought directions concerning incorporation of that document, the effect of provisions concerning a prospective £95,000 payment to one executor, the treatment of fields and a property called The Fringes, distribution of the residue to registered charities, and the future roles of the executors and trustees.

The defendant contended that the Letter of Wishes created an enforceable entitlement, restricted dealings with the land, prevented distribution to the registered charities, and justified her appointment or retention in fiduciary office. The claimants sought construction of the documents, distribution of the residue, and the defendant’s removal as executrix.

1. Incorporation. The Letter of Wishes was incorporated into the will. It was inferred to have existed when the will was executed, the will referred to it as an existing attachment, and it was identified with sufficient certainty. The Notes were not incorporated.
2. Construction. Applying Marley v Rawlings [2015] AC 129, the will was construed by reference to the natural and ordinary meaning of its words, the document as a whole, its purpose and relevant surrounding circumstances. The Letter of Wishes did not create a legally enforceable legacy of £95,000. The words “may receive”, coupled with the requirement that sufficient funds remain, left any expectation vulnerable to the charitable trustees’ subsequent decisions and financial circumstances.
3. The directions concerning the fields did not impose legally binding obligations. The Little Treglidgwith fields had already been sold, and the provisions concerning The Fringes were permissive and insufficiently certain to create enforceable duties.
4. The residuary estate, including The Fringes, should be distributed to the Jepson-Hearn Charity Will Trust. The identity of the trustees did not justify withholding property intended for the trust. The Will did not compel a sale of The Fringes, and no amalgamation with the Katie Piper Foundation had occurred.
5. Under section 50 of the Administration of Justice Act 1985, the guiding principle was the welfare of the beneficiaries and the proper administration of the estate. The defendant’s personal financial conflict and unjustified refusal to approve distribution had caused the administration to stand still, justifying her removal as executrix. Applying section 41 of the Trustee Act 1925, it was not expedient to appoint her as a charity trustee. There was no basis for removing the claimant executors.

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