The deceased died on 17 February 2015 as a widower with no children. He left a will dated 22 December 2008. The claimants were his executors.
Clause 7 of the will left the residuary estate to ‘such all of my nephew’s and niece’s children’. At the date of his death, the deceased had two blood nephews and two blood nieces, and also three nephews by marriage and one niece by marriage. A further nephew by marriage had died in 1992 leaving a son. The claimants sought directions as to whether the gift was just to the nieces and nephews by blood, or whether it was also to the nieces and nephews by affinity.
The first to seventh defendants inclusive were the children of the deceased’s nieces and nephews by blood. The eighth to fifteenth defendants were children of the deceased’s nieces and nephews by affinity.
The deceased had been married to Wendy Wales (Wendy), who died in 2008. The deceased had two siblings: John Wales and Josephine Mackay (Josephine). John Wales had a daughter, Suzanne Dixon (Suzanne), and a son, Andrew Wales (Andrew). Josephine had a son, John Mackay, and a daughter, Fiona Archer (Fiona).
Wendy also had two siblings: Roy Brackpool (Roy) and Celia. Roy had three sons, John Brackpool, David, and Haydn. Celia had a son, Paul, and a daughter, Carol.
The deceased and Wendy had made earlier wills in 1967, 1988, and 1997, all of which were professionally prepared by solicitors. The 1967 wills left their estates to each other, with residue to any children of theirs, and a gift in default to charity subject to gifts of £100 to each of the children of John Wales, Josephine, Roy, and Celia.
Under the 1988 will, the deceased left his estate to Wendy. If she did not survive him, but his mother did, he gave £30,000 to John Wales and Josephine in equal shares. He gave the contents of his home to Celia’s daughter Carole (Wendy’s niece). He gave £3,000 each to the children of John Wales, Josephine, and Roy. He also gave £3,000 to Wendy’s nephew, Paul (Celia’s son). He gave £2,000 to each of Carole’s sons. Wendy’s 1988 will was in similar terms and included a legacy to the children of Roy, John Wales, and Josephine.
Under the 1997 will, the deceased gave his estate to Wendy. If she did not survive him, the estate was to be divided equally between Suzanne, Andrew, John Mackay, Fiona, John Brackpool, David, and Haydn. Wendy’s will contained the same gift in default. By the time of the 1997 wills, Celia’s son Paul had died. In 1992, the deceased and Wendy had written to their solicitor who prepared the 1988 wills telling him this and that, although Paul was survived by a wife and son, they did not want to pass on the bequest to them. The claimant’s understanding was that Wendy and Celia had fallen out, which might explain why her daughter Carole was not included as a residuary beneficiary in the 1997 wills.
The instructions for the 2008 will had been taken over the telephone, and the draft will had been prepared and sent out to the deceased on the same day.
In interpreting the will, the court was obliged to look at the context and circumstances of the case. This obligation required the court to look at the background facts known to the testator alongside the terms used in the will to establish their intended meaning. The ‘context and circumstances of the case’ were not limited to the other provisions of the will or to cases where the gift would fail unless words were given an extended meaning (Marley v Rawlings  and Re Daoust  considered).
The other provisions in the will were not of assistance. The fact that the deceased appointed his brother and blood nephew as executors did not assist with the issue of who was intended to be residuary beneficiaries.
The decision to skip a generation by leaving the residue to the nieces’ and nephews’ children was neutral. There was no evidence of any agreement between the deceased and Wendy to benefit only their own blood great-nephews and great-nieces.
The deceased’s decision in 2009 to set up a discretionary trust in favour of the children of the nieces and nephews of both himself and Wendy was not admissible because it post-dated the will and in any event could be interpreted in favour of or against either side’s position.
The prior wills of the deceased and Wendy were admissible as part of the surrounding circumstances and background facts known to the deceased. They showed that throughout their marriage, and especially after it became clear that they were not to have children, both of them made mirror-like wills by which the survivor left a bequest or share of residue to members of both of their families.
A further part of the background was the fact that the deceased had inherited the whole of Wendy’s estate.
There was no extrinsic evidence explaining why the deceased should intend to change his will to exclude Wendy’s family. Haydn’s evidence was that after Wendy’s death, the Brackpool family continued to visit the deceased at least once a year, and that he used to call the deceased initially about once a week and then monthly up until his death in February 2015. Haydn’s evidence also indicated that the deceased’s intention was to widen rather than narrow the class since the deceased wished to ‘bury the hatchet’ with Celia.
Looking at the surrounding circumstances, it was clear that the deceased intended to include nephews and nieces by affinity as well as consanguinity. This conclusion was reached in light of the 46-year marriage between Wendy and the deceased, their prior wills, the passing of Wendy’s estate to the deceased, the absence of extrinsic evidence as to why the deceased might have wanted to exclude Wendy’s family, and the continuing contact between the deceased and the Brackpool family.
The manner in which the deceased’s instructions were taken for the will greatly increased the likelihood that his intention with regard to residue was not understood. His communications showed a lack of any focus on the residuary gift, and no attempt to establish by name or parent who was intended to benefit. This illustrates the dangers of taking instructions by telephone from an elderly widower without sight of his prior will or knowledge of his family tree. The clause was badly drafted, with grammatical and punctuation errors. This enhances the scope for giving the words an extended meaning when interpreted against the surrounding circumstances known to the deceased. The fact that the deceased said that the draft will accorded with his instructions threw no light on what he intended by the gift.
The court was assisted by the similar decision of the Supreme Court of British Columbia in In the Estate of Cecil Charles Herbert Holmes , though it did not base its decision on the facts of that case since each testator’s position falls to be considered individually and there may be differences between English and Canadian law.JUDGMENT MASTER TEVERSON:  This claim is brought by the Claimants, Mr John Wales and Mr Andrew Wales, as the executors of the estate of the late Peter Henry Wales (‘the Deceased’) who died on 17 February 2015 a widower without children. It asks the court to determine an issue of construction of the Deceased’s …