Analysis
Elizabeth Thomas (Elizabeth) passed away in 2018, leaving a will dated 30 September 2004. She was survived by her three sons, David, Owen and Gareth, and her 13 grandchildren.
Her will included, among others the following terms:
‘If my husband has [predeceased me]… I leave my property to be divided amongst my sons and their heirs. At present, these are as follows:… Sons — Owen, Gareth and David; their children are Owen/Fay; Gareth/Gwennan and Samuel and Raphael; David/Ellen Christie Thomas and Jens Rhys Thomas… ’
‘The proceeds from the realisation of my assets shall be divided according to the following rules. As there are three sons, the proceeds should be divided into three equal parts, A, B and C.
(A) Further divided: two-thirds to Owen and one-third to Fay.
(B) For Gareth Thomas and his three children, Gwennan, Samuel and Raphael, the amount divided into four equal parts… each of them getting a quarter…
(C) For David, a whole equal part, and, if deceased, the whole to his wife Jacomine. Should she also have died, one of the trustees… should disburse monies as needed for their children, at present only Ellen Christie Thomas and Jens Rhys Thomas.’
The grandchildren mentioned by name in the will were not exhaustive of Elizabeth’s grandchildren. Two of Owen’s children had been alive and known to Elizabeth when the will had been executed, but were omitted. David had two further children subsequent to the execution of the will, and Gareth had three further children subsequent to the execution of the will but prior to Elizabeth’s death. David, in his capacity as executor, sought to execute the will according to its terms. All of the residuary beneficiaries agreed that this was the proper course, with the sole exception of Gareth, who contended that Elizabeth had been mentally ill when she made the will, that the will was invalid for ‘many other reasons’ of an unspecified nature, and that he intended to bring a claim for provision for his three children not mentioned by name in the will (the minor grandchildren) pursuant to the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act). He further suggested that David had wrongly failed to preserve the assets of Elizabeth’s estate and that of her late husband. David sought a decision as to the construction of the will and as to whether the minor grandchildren had any entitlement under it, and a direction giving him liberty to distribute the estate according to the will as construed, unless within short order Gareth should commence a claim for revocation of the grant of probate, or else for provision for the minor grandchildren under the 1975 Act.
Held:
The meaning of the will was perfectly straightforward. It provided for the division of residue into three parts, and the distribution of each part of the residue to the people named in the will. Although it had at one stage been suggested that the reference to ‘my sons and their heirs’ created ambiguity, it did not in fact do so. It was simply a summary of the division into three parts, each to be received by the named individuals in the specified shares. Any contention that the minor grandchildren take under the will would be plainly wrong and contrary to the provisions of the will, and would require rewriting it. There was no question of Elizabeth having had any contrary intention so far as the minor grandchildren were concerned at the time at which she composed the will, because they had not then been born. Therefore on its proper construction the will made no provision for the minor beneficiaries.
The claims intimated by Gareth as to revocation of the grant of probate, or under the 1975 Act, could be addressed by an appropriate direction, allowing David to distribute the residuary estate in accordance with the will unless Gareth had brought a claim of either such type within 28 days of the order. The court made an order in these terms.
As to Gareth’s contention that David had failed to preserve the estate and keep it from loss, this had no bearing on the matters before the court, and in particular did not mean that the assets known to be in the estate could not be distributed in accordance with the terms of the will.
JUDGMENT HHJ KEYSER QC: Introduction [1] This is my judgment upon a Part 8 claim for construction of a will. Although it is naturally a matter of concern to the parties, it involves no significant issue of law. I gave my decision at the conclusion of the hearing and now give my reasons. [2] Mrs …Continue reading "Thomas v Thomas & ors [2021] WTLR 1091"