Analysis
John Reading died on 6 July 2005. He left a will dated 30 January 2004. He was survived by his wife, Janet; his two children, Stuart and Sally; and his three stepchildren, Neil, Ruth and Robin Sedgwick.
Under the will, Mrs Reading and Richard Flack were appointed trustees of a nil-rate band discretionary trust. The clauses of the will setting out the trusts of the nil-rate band trust included the testator’s ‘issue’ in the beneficial class. There was provision for such issue to be born at the testator’s death or thereafter during the trust period. Mrs Reading and Mr Flack brought a claim for the construction of the will, seeking a declaration that the term be construed to include the testator’s stepchildren (and their children) as well as the testator’s children. In the alternative they sought rectification to achieve the same effect.
Stuart and Sally corresponded with the claimants on the basis that they disputed the construction. However, they did not acknowledge service or participate in the proceedings save that Sally filed some unsigned evidence disputing the claimants’ evidence of the quality of her relationship with the testator.
The claimants led evidence to the effect that (1) both historically and at the time of his death the testator’s relationship with his stepchildren had been closer than that with his children, whom he saw less frequently; (2) the will instructions clearly contemplated the inclusion of stepchildren in the beneficial class and the draughtsman had intended to include them by the word ‘issue’; (3) a letter of wishes signed by the testator contemplated that his stepchildren would benefit from his will; (4) that the stepchildren would benefit from the testator’s will fitted with the scheme of his and Mrs Reading’s will, which was made at the same time; (5) it was unlikely that the testator’s children would have children however, the some of the stepchildren already did so and might have had more; (6) the testator had been contemplating suicide at the time of the will.
The claimants referred to Sammut v Manzi [2009] WTLR 1051 and Marley v Rawlings [2014] WTLR 299 as authority for the correct approach to construing wills being an attempt to deduce the intention of the testator by giving words the meaning that they naturally bear having regard to the contents of the will as a whole; that extrinsic evidence could be used to show that words had a special meaning for the testator; and that the approach to construing a will should be the same as that in relation to a contract, but with the added possibility of adducing extrinsic evidence of the testator’s intention when the provisions of s21 Administration of Justice Act 1982 (‘AJA 1982‘) were brought into action.
The claimants submitted that the will ought to be construed as claimed on the basis (1) of the natural and ordinary meaning of the language used; alternatively (2) that the word ‘issue’ was ambiguous within s21(1)(b) AJA 1982 and that extrinsic evidence showed that the construction sought was correct; alternatively (3) that when considered in the light of the surrounding evidence, particularly the letter of wishes, the word ‘issue’ was ambiguous and extrinsic evidence showed that the claimant’s construction was correct.
Rectification of the will was claimed in the alternative under s20(1)(a) AJA 1982 on the basis that the draughtsman’s mistake over the effect of the word ‘issue’ was a clerical error.
Held:
[1] On the basis of the available factual matrix, including the letter of wishes and without resort to s21 AJA 1982, the phrases using the word ‘issue’ should be construed to include the children and the stepchildren and both groups’ children in substitution for them as necessary. The court’s conclusion would have been the same even if the letter of wishes had been excluded from the factual matrix.
[2] If it had been necessary to decide the matter, the word ‘issue’ was not ambiguous within the meaning of s21(1)(b) AJA 1982 so as to permit extrinsic evidence to be adduced. Ralph v Carrick [1879] 11 Ch D 883 distinguished.
[3] Conversely, if it had been necessary to decide the issue, when taken on conjunction with the letter of wishes and the family dynamic, the word ‘issue’ was sufficiently ambiguous within the meaning of s21(1)(c) AJA 1982 so as to permit extrinsic evidence to be adduced.
[4] Rectification was not required but if it had been necessary to decide the issue, the mistake of the draughtsman as to the meaning of the word ‘issue’ was not a clerical error within the meaning of the Act and rectification would not have been available. However, had the position have been otherwise the discretion to extend the time for rectification would have been exercised.
JUDGMENT ASPLIN J: [1] This is a Part 8 claim brought by Mrs Janet Reading (‘Janet’) and Mr Richard Flack, the claimants, who are two of the trustees of a nil-rate band trust established by clause 3 of the will of the late John Reading dated 30 January 2004 (‘the will’). [2] John Reading died …Continue reading "Reading & anr v Reading & ors [2015] EWHC 946 (CH)"