CHAPTER ONE

INTRODUCTION

1. 1. The problem

Construction and rectification problems in wills and other trust instruments¹ come in many different shapes and sizes. When considering a provision in a will or other trust instrument which is unclear and/or can be interpreted in different ways, the PRs or trustees, beneficiaries and other interested parties may ask themselves: what did the testator or settlor mean? Alternatively, a provision may be clear on its face, but the particular surrounding circumstances may lead interested parties to ask themselves: is that really what the testator or settlor meant? These sorts of questions are often a good indication that the provision in question may give rise to a construction or a rectification problem.

1. 2. Structure of this book: distinction between wills and other
      trust instruments

Many trusts are created by will. These are usually – and unsurprisingly – referred to as ‘will trusts’. A will can therefore itself be a trust instrument. However, there are some important differences between the rules governing the construction and rectification of wills on the one hand, and those governing the construction and rectification of other trust instruments (typically trust deeds by which a settlor settles property on trust during his lifetime) on the other. As a result, this book distinguishes between wills (whether or not they create any will trusts), which are considered in chapters 2 and 3, and other trust instruments (i.e. any instrument which creates a trust except a will), which are considered in chapters 4 and 5.

In order to avoid a large amount of unwieldy cross-referencing, each of those four chapters has been written as self-standing. Because there is some similarity and overlap between the topics, this has resulted in some inevitable repetition across the chapters. However, that seemed to be a price worth paying to achieve what it is hoped are four chapters which are clearer and more straightforward to consult.

1. 3. A bit of history

As this is intended to be a practical guide, and this particular section is not at all practical, it has been kept short. However, it has been included because, as with most legal doctrines, some knowledge of history is likely to help better understand how we have got the current position, and why.

Wills and certain other trust instruments have a long history of being documents which are required by law to be in writing. Section 9 of the Wills Act 1837 has required wills to be “in writing” (save for some limited exceptions) for nearly 200 years, but the requirement can be traced back a further 300 years to the Statute of Wills of 1540. Similarly, sections 52 and 53 of the Law of Property Act 1925 impose some familiar writing requirements, the origin of which dates back to the Statute of Frauds of 1677. As a result, the courts have had to grapple with problematic drafting in wills and trust instruments for centuries. Unsurprisingly, the case law on the subject is enormous.

For the practitioner, one of the important points to emerge from history is a shift in the courts’ approach to construction from what can be described as a strict literalist approach to a more purposive approach. A large amount of judicial and academic ink has been devoted to this topic,² which continues to be controversial. It will only be considered briefly – and thus no doubt overly-simplistically – here.

The shift can be illustrated by contrasting the following two quotes, the first from 1833, the second from 2014:

In expounding a will, the Court is to ascertain, not what the testator actually intended, as contradistinguished from what his words express, but what is the meaning of the words he has used. I consider it doubtful what the testator actually meant should be done. But I have no doubt as to the meaning of the words used by him.³

19. When interpreting a contract, the court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words, (a) in the light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions of the document, (iv) the facts known or assumed by the parties at the time that the document was executed, and (v) common sense, but (b) ignoring subjective evidence of any party’s intentions.

20. When it comes to interpreting wills, it seems to me that the approach should be the same. Whether the document in question is a commercial contract or a will, the aim is to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context.⁴

The more strict literalist approach had generated several rules of construction which compelled judges to interpret particular words in a particular way, irrespective of context and no matter how absurd the result.

A landmark moment in the shift away from this approach was the House of Lords decision in Perrin v Morgan⁵ in January 1943. Emily Morgan died in 1939 leaving a home-made will by which she gifted some cottages, and then included the following provision: “all moneys of which I die possessed of shall be shared by my nephews and nieces now living”. The issue was whether the word “moneys” included the testatrix’s investments, which represented the bulk of her estate.

At first instance, Farwell J followed a well-established rule of construction dating back to 1725⁶ that, unless the context allowed a wider construction, “money” included only cash or currency in a testator’s possession or due to him (such as sums on current or deposit account at a bank). As the context did not allow a wider construction on the facts, a partial intestacy arose in relation to the investments.

The Court of Appeal felt it had no option but to uphold Farwell J’s decision because of previous binding authority.⁷ It did so reluctantly, describing the rule as “a blot on our jurisprudence” and commenting that it had been “said more than once by judges, members of the profession and laymen, that it defeats the intention of the testatrix”.

The House of Lords unanimously allowed the appeal. Although the result was unanimous, the different members of the Committee reached it in different ways. Perhaps the most colourful speech was that of Lord Atkin, who in his inimitable style held:

“The result of your Lordships’ decision will be to relieve judges in the future from the thraldom, often I think self-imposed, of judgments in other cases believed to constrain them to give a meaning to wills which they know to be contrary to the testator’s intention. […] I anticipate with satisfaction that henceforth the group of ghosts of dissatisfied testators who, according to a late Chancery judge, wait on the other bank of the Styx to receive the judicial personages who have misconstrued their wills, may be considerably diminished. It will be a relief to the whole legal profession that at last what the Master of the Rolls rightly called a blot on our jurisprudence has been removed.”⁸

Although this shift has not been linear,⁹ in general terms it can be said that the courts have tried to free themselves somewhat from the shackles of the ‘strict literalist’ approach and nowadays can adopt a fairly liberal and flexible approach to construction (where the circumstances allow it). This more liberal approach has also had an impact on the development of the doctrine of rectification, as discussed in the next section.

Another important historical point in relation to the rectification of wills is that prior to the enactment of the Administration of Justice Act 1982, it seems the courts had no power to rectify a will. Therefore this jurisdiction, and the case law which explores its limits, is still relatively young.

1. 4. Relationship between construction and rectification

It is now tolerably clear that the courts will generally approach a drafting problem by deciding its correct construction first, and only then moving on to consider whether the document should be rectified (if that issue arises at all).¹⁰

In relation to wills, this follows from the 3-stage approach to rectification identified in Re Segelman:¹¹

The subsection [viz. section 20(1) of the Administration of Justice Act 1982] requires the court to examine three questions. First, what were the testator’s intentions with regard to the dispositions in respect of which rectification is sought. Secondly, whether the will is so expressed that it fails to carry out those intentions. Thirdly, whether the will is expressed as it is in consequence of either (a) a clerical error or (b) a failure on the part of someone to whom the testator has given instructions in connection with his will to understand those instructions.

The second question requires the court to construe the will. Only then will the court be able to determine whether there is a mismatch between the testator’s intentions (i.e. the answer to the first question) and the effect of the will when properly construed (i.e. the answer to the second question).

There is authority for the proposition that the same approach applies in relation to other trust instruments.¹² In Kevern v Ayers¹³ the court refused to rectify a deed of variation where the parties had asked it not to determine its construction first because that issue was to be determined by the tax tribunal. The court described the approach as “unreal”¹⁴ and indicated that the separation between construction and rectification as “essentially artificial”.¹⁵

On the other hand, in cases involving instruments other than wills, the court may be asked to decide whether to rectify the instrument without deciding its construction first.¹⁶ This tends to happen where the rectification claim is considered to be very strong on the merits. If the circumstances justify it, this approach has the advantage of avoiding the “mental gymnastics that are required to ensure the evidence of subjective intent [which is admissible in relation to a rectification claim] is disregarded when dealing with the issue of construction”.¹⁷

Although the approach of (usually) determining construction first and then rectification appears well settled as a matter of authority, it is right to point out that its correctness has been questioned by some academics.¹⁸

1. 5. Miscellaneous

References to the male singular are used for ease and to avoid a repetitive overuse of “he or she” and “his or her”. Personal representatives are referred to as “PRs”. In chapters 2 and 3, references to PRs should be read as references to “PRs or trustees, as the case may be” (unless the context requires otherwise).

Unless otherwise stated, all references to the Chancery Guide are to the February 2016 edition as updated in August 2019. I have attempted to state the law as at 31 October 2019.

In the conventional way, the responsibility for any error or omission – as well as for any offence my examples might cause to opera purists – is solely mine.

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