Wales v Dixon & Ors

A will is construed by identifying the meaning of its words in their natural and ordinary sense, read in the context of the document, its purpose and the facts known or assumed when it was made. Under Administration of Justice Act 1982, s 21, evidence of the testator’s actual intention may additionally be admitted where the statutory conditions are met.

The words “nephew” and “niece” ordinarily denote the child of a sibling, but may extend to a sibling-in-law’s child where the context and surrounding circumstances justify that construction. Earlier wills, the testator’s family relationships, inherited property and continuing family relationships may form part of the relevant background. The class gift here therefore included children related by affinity as well as by blood.

The executors sought construction of a residuary gift in the deceased’s will. The gift was to “such all of my nephew’s and niece’s children” living at his death. The issue was whether the class comprised only the children of his blood nephews and nieces, or also the children of his nephews and nieces by marriage.

The deceased had been married for 46 years, had no children, and had previously made wills benefiting members of both his own family and his wife’s family. After his wife’s death, he inherited her estate. The court considered the meaning of the class description, the admissibility and relevance of surrounding circumstances and evidence of actual intention, and the effect of the will’s drafting and preparation.

1. Construction of the will. The court applied the approach in Marley v Rawlings [2014] UKSC 2, under which the words of a will are construed in their natural and ordinary meaning, read with the document’s purpose, other provisions and the relevant background facts. Section 21 of the Administration of Justice Act 1982 confirms that approach and permits evidence of the testator’s actual intention where one of the statutory conditions is satisfied.
2. Meaning of “nephew” and “niece”. Following Re Daoust [1944] 1 All E.R. 443, the strict meaning is the child of a brother or sister. That meaning is capable of extension to the child of a brother-in-law or sister-in-law where the context and circumstances require it. The relevant circumstances are not confined to the other provisions of the will or to a case in which the gift would otherwise fail. They include background facts known to the testator.
3. Application. The surrounding circumstances established that the deceased intended to include children related by affinity. The material factors were the 46-year marriage, the parties’ previous mirror-like wills benefiting both families, the deceased’s inheritance of his wife’s estate, the absence of evidence explaining an intention to exclude her family, and continuing contact with that family after her death. The poor drafting of clause 7 and the telephone-taking of instructions reinforced the need to construe the words against that background. The decision in In the Estate of Cecil Charles Herbert Holmes (2007) BCSC 51 was consistent with the result, but the decision was based on the individual circumstances of this case.
4. Evidence after execution. The later discretionary trust was not part of the surrounding circumstances at the date of the will and could not assist its construction.
5. Order. The residuary estate was to be divided equally among all 15 defendants. The costs of all parties were payable from the estate on the indemnity basis. The court declined to require detailed assessment of the costs payable out of money belonging to child defendants unless the parties could not agree them within 21 days.