MARGARET GARBUTT v TIMOTHY ROBSON GARBUTT

A court construing a will must identify the testator’s expressed intention from the words used, read as a whole and in their admissible factual and legal context. The court may supply omitted words only where the omission and its substance are clear from the document. It cannot rewrite an incomplete will or create a testamentary gift merely because that would produce a more sensible result or reflect an apparent intention. The presumption against intestacy operates only where the will contains words, expressly or by necessary implication, capable of creating an effective gift. A registered mortgage is not discharged without payment or other effective release where the mortgagee has not intended it to end.

Mrs Garbutt sought declarations concerning a mortgage securing a £28,000 loan, the construction of her deceased husband’s will, and the destination of his residuary estate. She also advanced an alternative claim under the Inheritance (Provision for Family and Dependants) Act 1975.

The will created a trust concerning the deceased’s beneficial interest in the matrimonial property, but contained no express gift of the residuary estate. The court had to determine whether Mrs Garbutt received a life interest, whether the mortgage remained effective, and whether the residue passed by partial intestacy.

1. Mortgage. The mortgage remained valid and effective. It was still registered, the secured loan had not been repaid, and there was no evidence that Mrs Garbutt had released it or intended it to end. Informal release or merger required, at minimum, an intention by the mortgagee to bring the security to an end.
2. Construction of clause 4. Read as a whole, clause 4 gave Mrs Garbutt a life interest in the deceased’s one-half beneficial interest in the Property. The provisions for payment of income during the Trust Period, the trustees’ regard for her wishes concerning replacement property, and the children’s remainder taking effect only on her death supported that conclusion. The court construed the words actually used and did not rely on speculation.
3. Residuary estate. Clauses 7 and 10 assumed that the residue had been disposed of elsewhere, but contained no gift of it. Earlier wills could not supply a missing gift, particularly since they were not evidence of the deceased’s intention when the operative will was made. The presumption against intestacy could not create a gift where the will contained no sufficient words. The residuary estate therefore passed on a partial intestacy. Under sections 46 and 49 of the Administration of Estates Act 1925 and paragraph 2 of the Administration of Estates Act 1925 (Fixed Net Sum) Order 2020, Mrs Garbutt was entitled to the ready cash.
4. The alternative 1975 Act claim did not require determination because the declarations and the parties’ settlement resolved the relevant provision issues.

Declarations were made that the mortgage was valid and effective, clause 4 created a life interest, and the residuary estate was undisposed of and passed by partial intestacy.