Construction of Ambiguous Will Clause as if Contract Clause

An ambiguous clause in a will has recently exercised the High Court in a case involving an order of the family court in respect of child maintenance.

In Tish and others v Olley and others [2018] EWHC 1069, a claim was made under the Inheritance (Provision for Family and Dependants) Act 1975. This ruling was on a preliminary issue involving the correct construction of a particular clause in the deceased’s will, so that the main dependency claim could be dealt with.

What was the background?
The deceased had divorced wife number 3, and under the Ancillary Relief order, he was required to pay his ex-wife £18,000 per annum, and to each of the children Revan (then 9) and Arabella (then 6) £11,000 per annum until the age of 18 (or completed tertiary education if later. He was also liable for private school fees and agreed to assign his life insurance to the benefit of the three of them.

He remarried, and was later diagnosed with motor neuron disease, rapidly deteriorating over the following two years but spent a lot of time with the two children. He decided to make a will. Being unable to work, he could not fulfil his maintenance obligations and applied to vary the court order, but he died before proceedings were finalised.

At issue was how to interpret the following clause in his will:

I give to my daughter Arabella Camille Tish and my son Revan Elliot Tish as shall survive me free of all taxes Maintenance to be paid in relation to the current Court Order as may be amended in time, therefore if the maintenance in reduced then the reduced level can be accounted for.“

The Court reiterated the correct approach for interpreting a will, which is the same as the test for interpreting an ambiguous contract clause. All the parties at the hearing before me were agreed as to the correct principles to be applied when interpreting a wil:

determining the testator’s intention by identifying the meaning of the relevant words in light of:

(i) the natural and ordinary meaning of those words
(ii) the overall purpose of the Will,
(iii) any other provisions of the Will
(iv) the facts known or assumed by the testator at the time the Will was executed and
(v) common sense, but
(vi) ignoring subjective evidence of the testator’s intentions

The Court also took into account the so called ‘armchair principle’, whereby the Court can to put itself in the testator’s position to declare what is the intention evidenced by those words with reference to the facts or circumstances which were (or ought to have been) in the mind of the testator when he used those words.

What did the High Court rule?
Applying these principles, the Court found that the deceased had appreciated that his maintenance obligations to the children would not survive his death, but he chose to voluntarily complete these regardless.

It was common ground that the reference to “the current Court Order” referred to the 2007 Order, and the Court ruled that this remained in force at his death. On that basis, Revan and Arabella were entitled to the annuities on the same terms as the 2007 Order.



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