Analysis
Ronald Anthony Allcroft Gibbons (the testator), who had no family, made a handwritten will on 29 December 2010 by which he appointed the claimants as his executors and gave them his residuary estate ‘to hold on trust to pay my debts, taxes and testamentary expenses and pay the residue to Veronica Broadhurst, Ann Foden, the living grandchildren of Veronica Broadhurst, and David Spurling in equal shares’. The testator died the following year and the claimants, who considered the terms of the residuary gift to be ambiguous, sought a declaration as to its construction. The third to sixth defendants were the (minor) grandchildren of the first claimant and the seventh to 13th defendants were the (mostly minor) grandchildren of the first defendant. There were two ambiguities:
- (i) whether the testator intended the first claimant or his grandchildren to benefit; and
- (ii) whether the testator intended the members of the class(es) of grandchildren to take per capita or per stirpes.
The claimants considered there to be four possible constructions:
- (1) residue was divisible into 13 shares with one passing to each of the defendants;
- (2) residue was divisible into four shares with one passing to each of the first and second defendants and the first claimant and one further share being divided between the seventh to 13th defendants;
- (3) residue was divisible into four shares with one passing to each of the first and second defendant, one being divided between the third to sixth defendants and one further share being divided between the seventh to 13th defendants; and
- (4) residue was divisible into ten shares with one passing to each of the first, second, seventh to 13th defendants and the first claimant.
Held (adopting the first of the four possible constructions)
The general rule suggested that, in the absence of any context or surrounding circumstances, a gift to the children of A and B in equal shares or to be equally divided between the children of A and B should be construed as a gift per capita between the individual B and the children of A. However, the court would not construe a will in a vacuum: each case was different and should be decided according to the actual words used, construing the will as a whole in the factual context in which it was made. This accorded with modern principles of construction, equally applicable to the interpretation of contracts and statutes, to deduce the intention of the testator from the natural meaning of the particular words used, having regard to the contents of the will as a whole in their admissible factual matrix. Punctuation could be taken into account, although its significance depended on the context. Evidence of the factual matrix, nowadays including extrinsic evidence of the testator’s subjective intention, was admissible to assist in the construction of a will that was patently ambiguous. In the present case, there was no doubt that the words of the residuary gift were ambiguous and could admit of each of the possible constructions suggested by the claimants. On the basis of the evidence, it was clear that the testator had been close both to the family of the first claimant and to the family of the first defendant, although there was little contact between the two families. Having regard to the random use of punctuation and inexact grammar, the use of the comma after the words ‘Veronica Broadhurst’ was unlikely to bear the significance that had been suggested by the first defendant. Accordingly, that comma should be ignored and the word ‘and’ should be read into the residuary gift before the words ‘the living grandchildren’ so that, on its true construction, it would read ‘… to hold on trust to pay my debts, taxes and testamentary expenses and pay the residue to Veronica Broadhurst, Ann Foden, and the living grandchildren of Veronica Broadhurst and David Spurling in equal shares’. Alternatively, the word ‘of’ should be read into the residuary gift before the words ‘David Spurling’. Thus, the division of the residuary gift was intended to be per capita, not per stirpes.
Obiter
The procedure adopted in this case was unusual in that, notwithstanding personal interest and the minority of most of the parties, only the claimants were legally represented by one firm of solicitors and one counsel. The objective of saving costs might be laudable but, in view of the size of the estate and the issues, it would have been preferable for those parties who were minors to have had the protection and advantage of adversarial argument. Consequently, this decision should not be taken as an approval of the process adopted on this occasion, whereby the court was being used as counsel of last resort and asked not only for its opinion but a binding declaration, without the benefit of adversarial argument and the comfort that those too young to express a reliable view had been fully and independently advised and represented.
Judgment HHJ Hildyard: The question in issue: construction of a residuary gift [1] The question in this case is as to the true construction of the residuary gift in the will of Ronald Anthony Allcroft Gibbons, deceased (the testator). The claimants are the executors of the testator’s estate. The claim is brought by way of …Continue reading "Spurling & anr v Broadhurst & ors [2012] EWHC 2883 (Ch)"