Equiom (Isle of Man) Ltd & ors v Velarde & ors [2022] WTLR 109

Analysis

Under a settlement made in 1974 by the deceased’s father, the deceased became the life tenant of a fund, over which property she had a power of appointment exercisable in favour of her children by deed revocable or irrevocable, or by will. In 1981, by a deed of appointment with effect from her death, the deceased appointed the fund between her three children. By a deed of revocation in 1997, expressed to be supplemental to the settlement and the 1981 deed of appointment, with effect from her death, the fund was appointed on trust for only two of her three children. The deceased made her last will and testament in 2007. By clause 7 of her will, the deceased devised, bequeathed and appointed the whole of her real estate, residue and remainder over which she had any power of testamentary disposition whatsoever to her three children.

The deceased died in 2017. The deputy master held that clause 7 of the will impliedly revoked the 1997 appointment and that consequently a valid new appointment of the fund to all three children had been made. The first defendant appealed.

Held – dismissing the appeal:

1. 1) A revocation will be implied if the words used in the will, viewed in context, demonstrate an intention on the part of the testator to make a gift or to exercise a power of appointment which can only take place if a prior appointment is revoked, and it is necessary to give effect to the clear intention of the testator. The question turns on the words used and the context in which they are used (paras [70]-[77]).
2. 2) The deputy master was entitled to conclude that clause 7 of the will impliedly revoked the 1997 appointment and a new appointment had been made to all three children based on the words used in the will and the context as he found it. The context was that there was only one power of appointment such that his conclusion that clause 7 was intended to exercise that power was not unsustainable. The word ‘appoint’ and the phrase ‘over which I shall have any power of testamentary disposition whatsoever’ would not be found in a residuary gift as a matter of routine drafting. The deputy master was entitled to find that the absence of reference to the 1997 appointment did not assist with the deceased’s intention either way (paras [83], [89]-[90]).

JUDGMENT MR ASHLEY GREENBANK: Introduction [1] This appeal is against a decision of Deputy Master Dray dated 15 June 2021 (the ‘Decision’). It is reported with neutral citation number [2021] EWHC 1528 (Ch). [2] In that decision, Deputy Master Dray decided that a provision of the will of Mrs Patricia Moores dated 12 November 2007 …

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