Terence John Keegan v Patricia Ann Keegan

When construing a will, the court may consider the surrounding circumstances known to the testator when the will was made. Physical features, plans and the historical association of land may assist in identifying the subject matter of a gift. Where the will remains ambiguous, Administration of Justice Act 1982, section 21 permits direct evidence of the testator’s intention. That evidence assists construction; it does not rectify the will or create a different gift. On appeal, the court does not rehear the evidence. It asks whether the trial judge identified the correct issue and whether the conclusion was reasonably open on the evidence.

This was an appeal by Terence John Keegan against a judgment of Deputy District Judge Hassall concerning the construction of his late mother’s will. The will gave Terence the land and farm buildings of Kings Clough Head Farm and gave Patricia a derelict property known as Heath Cottage. The Deputy District Judge held that the gift of Heath Cottage included adjoining Field 84, as well as a vehicular right of way, although only the Field 84 issue was permitted to proceed on appeal.

The appeal concerned whether the will, construed with the surrounding circumstances and evidence of the deceased’s intention, extended beyond the building itself to Field 84.

1. Appeal dismissed. The appellant failed to show that there was no evidence, or no substantial evidence, on which the Deputy District Judge could reasonably conclude that the gift of Heath Cottage included Field 84.
2. The armchair principle permits evidence of the surrounding circumstances at the date of execution to assist in identifying the subject matter of a testamentary gift. This may include plans, title documents, physical features, the land historically associated with a building and evidence of the testator’s understanding. The principle was authoritatively established in Perrin v Morgan [1943] AC 399.
3. Section 21 of the Administration of Justice Act 1982 extends the principle where the will is ambiguous on its face or in light of the surrounding circumstances. Direct evidence of the testator’s intention may then be admitted. The court must distinguish construction under section 21 from rectification under section 20, which was not the relief sought.
4. The CPH number and subsidy plans were relevant background material but did not conclusively define the gifts. They were prepared for agricultural subsidy purposes and were not title documents. The evidence showed several possible constructions, including the historical plans, the absence of clear boundary features, the nature and dereliction of Heath Cottage, and the deceased’s understanding of the property.
5. The appellate court’s task was not to reassess the evidence or conduct a rehearing. The question was whether the lower court had identified the correct issue and reached a conclusion reasonably available on the evidence. The lower court’s typographical errors concerning dates were immaterial.

• High Court, Business and Property Courts in Manchester: appeal from the judgment of Deputy District Judge Hassall dated 21 July 2022. The appeal was dismissed.