Judi Barbara Bonham & Anor v Carole Stringer & Ors

The court may construe a will according to the testator’s evident intention where a literal reading produces an internally inconsistent result. In doing so, it applies the modern contextual approach used for contractual interpretation, while recognising that the document is unilateral. A drafting error may be corrected as an exercise in interpretation where the intended meaning is sufficiently clear. A partial intestacy should not be inferred from an apparent drafting slip in a professionally prepared will without clear evidence that it was intended. Where the statutory conditions are met, Administration of Justice Act 1982, section 21 permits extrinsic evidence, including evidence of intention, to assist interpretation.

The claimants, professional executors and trustees, sought construction or rectification of the deceased’s will. Clause 7 stated that the residue was to be divided into four equal parts, but provided trusts for only three beneficiary groups. The defendants either did not contest the claim or did not participate. The central issue was whether the word “four” should be read as “three”, or otherwise disregarded, so that the will did not produce a partial intestacy.

1. Declaration granted. On the true construction of clause 7, the Trust Fund was to be divided into three equal parts, one part for each of the three trusts in clause 7(a)(i)–(iii). The issue of rectification therefore did not arise.
2. The modern approach to wills is aligned, so far as possible, with contractual interpretation. The court identifies the meaning of the words in their documentary, factual and contextual setting, considering the natural and ordinary meaning, the document’s purpose, its other provisions, relevant known or assumed facts and common sense, while excluding subjective intention except where legislation permits it.
3. The reference to four parts was inconsistent with the three operative subclauses and the will’s evident scheme. The court was satisfied that “four” was inserted in error and should be read as “three”. The same conclusion could be reached by disregarding the inconsistent word under established principles of will construction.
4. A deliberate partial intestacy was conceivable, but could not reasonably be inferred here. A professionally drafted will giving the residue to three identified groups did not demonstrate an intention to benefit the next of kin through an unstated fourth share.
5. Alternatively, the facial tension in the wording constituted ambiguity in the broad sense recognised for section 21(1)(b) of the Administration of Justice Act 1982. The court could therefore admit extrinsic evidence of intention, which confirmed that the testator intended three shares. Because construction resolved the claim, the court did not determine whether permission for the late rectification application should be granted under section 20(2).