CHRISTINE HAWKEN v GEOFFREY RONALD JELBERT & Anor

A will must be construed as a whole, by identifying the testator’s objective intention from the words used in their documentary and factual context. A description of land as property “known as” a particular name may include adjoining land which an objective observer would regard as part of the identified property. A plan marked for identification assists construction but does not necessarily prevail over the verbal description.

Planning documents may provide relevant context, but a red line does not determine whether land is conveyed or merely subject to ancillary rights. Where a will is ambiguous, direct evidence of the testator’s intention may be considered under section 21 of the Administration of Justice Act 1982. A proprietary estoppel may arise where there is a sufficiently clear assurance, reasonable reliance and detriment.

The claimant was the deceased’s long-term partner. Under clause 3 of his will, he left her all his interest in property known as Ponsandane Meadow, identified on an attached plan shaded red, together with rights of access.

The claimant had funded the construction of a bungalow within a former walled garden. The dispute concerned whether the gift included an adjacent turning and parking area and part of the driveway leading to the public highway. Alternatively, she sought rectification, proprietary estoppel relief and ancillary access and service rights.

The central issues were the proper construction of the will, the effect of the identification plan, and the scope of any rights arising from the express gift or proprietary estoppel.

1. Construction of the will. The court construed the will objectively, having regard to the words used and their documentary and factual context. The description “the property known as Ponsandane Meadow” was ambiguous when considered with the plan and the surrounding evidence. Direct evidence of the deceased’s intention was therefore admissible under section 21 of the Administration of Justice Act 1982.
2. The walled garden, including its walls, and the full extent of the gravelled turning and parking area constructed before the deceased’s death formed part of Ponsandane Meadow. The physical relationship between the bungalow and parking area, the planning material, the claimant’s funding of the works and the parties’ understanding supported that conclusion.
3. The driveway leading towards the B3311 was not included in the freehold gift. The planning plans served a different purpose, retaining the driveway would otherwise have little practical sense, conveying it would divide the retained gardens, and the deceased’s contemporaneous note referred to a right of way rather than transfer of the driveway.
4. The plan attached to the will was expressly for identification. It assisted construction but did not displace the verbal description. The court applied the approach in Johnson v Shaw [2003] EWCA Civ 894: where the verbal description is uncertain, the plan may be used for whatever assistance it provides.
5. The express right of access included vehicular as well as pedestrian access. The driveway was suitable for vehicles, served the other properties, and was the only practical route to the bungalow.
6. The proprietary estoppel claim was also established. There was an assurance of sufficient clarity, reliance and detriment, applying the ingredients identified in Davies v Davies [2016] EWCA Civ 463 and Thorner v Major. The assurance extended to the walled garden and turning and parking area, but not the driveway. As the will gave effect to the same promise, no further relief was required.
7. Rectification would have been refused if necessary. The claimant bore the ordinary civil burden of proving a clerical error or failure to understand instructions under section 20 of the Administration of Justice Act 1982, which she could not have discharged on the evidence.
8. The court declared that clause 3 conveyed the walled garden and turning and parking area, together with a vehicular and pedestrian right of way along the driveway. Ancillary easements reasonably necessary for enjoyment of Ponsandane Meadow were implied, but their precise extent was left for the personal representative to address in the transfer, subject to liberty to restore.

Not stated in the judgment.