Tish v Olley [2018] EWHC 1069 (Ch)

WTLR Issue: Spring 2018 #171

1. AMANDA MARIE TISH

2. REV AN ELLIOT TISH

3. ARABELLA CAMILLE TISH (acting by her litigation friend, Amanda Marie Tish)

V

1. DAREN THOMAS OLLEY

2. NICHOLAS LANGLEY (As executors of the estate of Raymond Howard Tish)

3. LOUISE TISH

Analysis

The claimants, the former wife of the deceased and their children by that 
marriage, brought claims under the Inheritance (Provision for Family and Dependants) 
Act 1975. 


Following the breakdown of the marriage between the first claimant and the 
deceased, in 2007 a consent order was made by the Principal Registry of the Family 
Division disposing of the first claimant’s ancillary relief application. That order 
provided, inter alia, that the deceased would pay £11,000 a year in respect of the 
children of the marriage until they attained the age of 18 years or, if later, 
completed tertiary education. This sum was to be adjusted for inflation. The order also provided for the deceased to pay all school fees and reasonable extras incurred by 
the children.


The deceased died in 2014. By his will he gave to the second and third 
claimants ‘Maintenance to be paid in relation to the current Court Order as may be amended in time, therefore if the maintenance is reduced then the reduced level can 
be accounted for’.


On a preliminary hearing, the following issues arose:


  1. A.What was the correct construction of the gift in the will?

  2. B.Whether s28 and 29 Matrimonial Causes Act 1973 rendered the gift inoperative?

  3. C.Whether the gift was void for uncertainty?


Held:


  1. 1)The principles applicable to the construction of wills were as set out in Marley v Rawlings & anor [2015] AC 129 per Lord Neuberger of Abbotsbury. The construction of the relevant clause was clear and straightforward. The deceased intended to make a gift to his two children which had the effect of carrying forward after his death the maintenance including school fees that he had agreed to provide for them in the 2007 order. Marley applied.

  2. 2)Although the effect of s28 and 29 Matrimonial Causes Act 1973 was that the 2007 order ceased to have effect upon the deceased’s death, this did not cause the relevant clause to be inoperative. It was implausible that the deceased would deliberately include in his will a provision that was in fact a gift of nothing, or that he simply sought to record an obligation he believed would continue after his death.

  3. 3)The gift was not void for uncertainty. On a correct construction, the gift referred to reductions in the level of maintenance between the making of the will and the deceased’s death. On that construction, no uncertainty arose because it was determined by the 2007 order unless and until varied. Athony & anor v Donges & anor [1998] 2 FLR 775 distinguished.


Order accordingly.


JUDGMENT
 ROSE J:
 [1] The claimants have brought a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the ‘1975 Act’) against the executors of the estate ofthe late 
Raymond Tish who died on 10 August 2014. He left a will which was made on 
28 February 2014. Amanda Tish is the former …
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Counsel Details

Jordan Holland (5 Stone Buildings, Lincoln’s Inn, London WC2A 3XT, tel 020 7242 6201, e-mail clerks@5sblaw.com), instructed by Withers LLP (16 Old Bailey, London EC4M 7EG, tel 020 7597 6000, e-mail enquiries.uk@withersworldwide.com) for the first and third claimants.



The second claimant appearing as a litigant in person.

The first and second defendants did not appear and were not represented.

Robert Sterling, instructed by Gelbergs (188 Upper Street, Islington, London, N1 1RQ, tel 020 7226 0570, e-mail enquiries@gelbergs.co.uk) for the third defendant.

Cases Referenced

Legislation Referenced

  • Administration of Justice Act 1982, s21
  • Inheritance (Provision for Family and Dependants) Act 1975
  • Matrimonial Causes Act 1973, s28, 29