Analysis
Daisy Bean (Daisy) passed away on 19 July 2017. She had four children, but only three remaining alive at her death. She had a total of 73 descendants at the time of her death including her children, grandchildren, great-grandchildren and great-great-grandchildren. She left a will dated 2 November 2010 (the 2010 will). It provided ‘MY Trustees shall then distribute the balance remaining [ie the residuary estate]… equally among all my children who are alive at my death’. The issue falling to be determined was whether, on its proper construction, the will indicated an intention contrary to the application of s33 of the Wills Act 1837 (s33). According to s33, absent such a contrary intention, where a will contains a gift to a class of persons consisting of children or remoter issue of the testator and a member of that class predeceases the testator, leaving issue still living at the testator’s death, the gift shall take effect as if the class had included the issue of the deceased member surviving the testator.
Held:
The relevant clause of the will was not ambiguous, clearly meaning that the residue should be shared equally between the surviving children. As such, extrinsic evidence and in particular evidence of Daisy’s subjective intention would not be admissible. In consequence, various matters on which counsel for the second defendant sought to rely as showing a contrary intention, including copies of wills previously executed by Daisy, were inadmissible, as was evidence as to her actual intention when making the 1993 will. Moreover, even if the previous wills were admissible, having been executed respectively 23 and 17 years before the 2010 will, they were of no probative value in deciding what Daisy’s testamentary intentions were in 2010.
There was nothing in the relevant clause expressing an intention that the statutory substitution provisions of s33 were to be excluded. Its terms were materially indistinguishable from a gift to ‘all or any of my children who survive me in equal shares’ or simply ‘all my children’. Inclusion of the words ‘[such of my children] who are alive at the date of my death’ was not sufficient to show a contrary substitutional intention. Those words also did not distinguish the gift from one simply to ‘all my children’. It was irrelevant that the ordinary and natural meaning of the clause did not include provision for the issue of a child who predeceased Daisy: s33 itself imposed that provision. Similarly, the fact that the words of the clause on their face prevented the residual share of a predeceasing child from lapsing was not sufficient to exclude s33’s operation. As had been held in Ling v Ling [2002] and Hives v Machin [2017], mere provision for residuary legatees to take ‘if more than one, in equal shares’ did not exhibit an intention to exclude the application of s33. The analysis and reasoning in Ling and Hives was preferred to that of Rainbird v Smith [2012] in this regard. The court’s modern approach to the construction of wills did not require the court to disregard cases involving materially identical wording in materially identical contexts. Such cases remained of assistance in interpretation.
If, contrary to the Master’s primary conclusion, the clause was ambiguous as to whether it showed an intention that s33 should not apply, and hence pursuant to s21 of the Administration of Justice Act 1982, evidence of Daisy’s testamentary intentions at the time of making the 2010 will was admissible, the previous wills were still of no probative value, and hence the most important extrinsic evidence would be the 2010 will file. The documents in that file showed only an intention to leave the residue equally between all four children, without any qualification, or any wording that could be said to show an intention contrary to the application of s33. Therefore, on the proper construction of the 2010 will, s33 of the Wills Act 1837 was not excluded from applying to the relevant clause of the will.
JUDGMENT MASTER CLARK: [1] This is my judgment on a Part 8 claim made by claim form dated 29 April 2020 seeking the determination of a point of construction of a will dated 2 November 2010 (‘the 2010 Will’) of Daisy Mary Joan Bean, who died on 19 July 2017. [2] Mrs Bean had 4 …Continue reading "Burns v Bean & ors [2021] WTLR 795"