David Leslie White v Keith Elfed Williams

In construing a will, the court identifies the testator’s intention from the natural and ordinary meaning of the words, the document as a whole, its purpose, known circumstances and common sense. A disclaimer is a refusal to accept an interest and ordinarily leaves the property to devolve under the applicable succession rules, subject to any effective substitutionary provision. Where a will provides that a gift or trust share which fails is to accrue to other shares, the word fails may extend to a disclaimer, even though the disclaimer occurs after the testator’s death. The court may determine the dispute by construing the will’s express substitutionary clause without deciding the wider scope of the statutory deeming provision for disclaimers.

The claimant, the sole executor of the deceased’s will, sought directions under Part 8 concerning the distribution of the residuary estate. The defendant, a beneficiary entitled to one sixth of the residue, had repeatedly indicated that he wanted nothing to do with the estate and had not signed a formal notice of disclaimer. The court had already found that his conduct demonstrated an intention to disclaim.

The issue was whether his share should accrue equally to the five remaining residuary beneficiaries under clause 6(b), or pass on a partial intestacy. That depended principally on whether failure in the substitutionary clause included a disclaimer.

1. Construction of the will. The court applied the general principles in Marley v Rawlings: the relevant words were to be construed by reference to their natural and ordinary meaning, the overall purpose and provisions of the will, known or assumed facts at execution, and common sense, while disregarding subjective intention evidence.
2. Effect of disclaimer. At common law, a disclaimer is a refusal to accept an interest. Without a substitutionary clause, the disclaimed gift would pass under the rules of intestacy. Section 33A of the Wills Act 1837 treats a person who disclaims a testamentary gift as having died immediately before the testator, unless a contrary intention appears.
3. Alternative statutory issue. The court did not need to decide whether section 33A(2) operates for all purposes in determining the meaning and effect of a will, or whether any drafting difficulty could be addressed by statutory rectification. The result was the same under either possible analysis.
4. Meaning of “fails”. Clause 6(b) applied if the trusts declared by clause 6(a) failed. In its natural and ordinary meaning, fails extended to a disclaimer, notwithstanding that the disclaimer occurred after death. If the defendant was instead treated as having predeceased the deceased, the substitutionary gift to his children also failed because he had no children.
5. Disposition. On either analysis, the defendant’s one-sixth share of the residuary estate fell to be divided between the other residuary beneficiaries. It therefore did not pass to the intestacy beneficiaries.