Estate of Thomas Deceased, Re

A will is interpreted by identifying the testator’s intention from the words used in their documentary and factual context, applying the same approach as for other documents. Under Administration of Justice Act 1982, s 21, extrinsic evidence of actual intention is admissible only where the will is meaningless or ambiguous within the statutory conditions. A court must not rewrite a clear will to accommodate beneficiaries whom the testator did not include. Where threatened proceedings may affect distribution, the court may give an executor liberty to distribute after a specified period unless such proceedings are commenced.

The claimant, the executor of Elizabeth Pauline Thomas’s will, brought a Part 8 claim for construction. The will divided the residue among the deceased’s three sons and specified children, including three grandchildren of Gareth Thomas. Gareth contended that the will was ambiguous, invalid, or unfair because it made no provision for his three younger children, who had been born after execution of the will. He also threatened proceedings concerning testamentary capacity, family provision, and the executor’s handling of estate assets.

The issues were the meaning of the will and whether the executor should be permitted to distribute the estate unless specified proceedings were commenced within a defined period.

1. Construction of the will. The court declared that the will was clear. The three charitable gifts were payable first. The residue was then divided into three equal parts: Part A, two-thirds to Owen and one-third to Fay; Part B, equally among Gareth, Gwennan, Samuel and Raphael; and Part C, entirely to David. Shares of beneficiaries who were minors were to be held by trustees until majority.
2. Applicable interpretative approach. Following Marley v Rawlings [2012] UKSC 2, the will was to be interpreted by identifying the meaning of its words in their documentary and factual context, including the document’s purpose, other provisions, known circumstances and common sense. The reference to the sons and their heirs was a summary of the testamentary scheme and did not create ambiguity.
3. No entitlement for later-born grandchildren. The younger grandchildren did not take under the will. Such a construction would contradict the express distribution provisions and would require the court to rewrite the will. Evidence of an actual contrary intention was impossible in relation to beneficiaries who had not been born when the will was made.
4. Potential further proceedings. Applying Fitzhugh Gates (a firm) v Sherman [2003] EWCA Civ 886, the court could direct that the executor was at liberty to distribute unless Gareth commenced proceedings to revoke probate or seek relief under the Inheritance (Provision for Family and Dependants) Act 1975 within 28 days. No merits determination of those possible claims was made. The court noted that any claim under section 1 would require consideration of whether the proposed applicants were qualified to apply.
5. Complaints about preservation or loss of estate assets did not affect construction of the will or present distribution. Any breach-of-duty claim would have to be considered separately.
6. The court declared the meaning of the will and permitted distribution after 28 days unless the specified proceedings were commenced. Gareth was ordered to pay the claimant’s costs on the indemnity basis, recoverable from his share if unpaid before distribution.