Watch your language

Using the correct terminology in a will is of vital importance in order to avoid any issues when assets are later distributed.

Rather than just considering precision of the general phrasing, the level of accuracy should filter down to the actual words themselves.

The real value of will terminology can be illustrated by the recent case of The Royal Society v Zoe Ruth Robinson & Ors.

The deceased, Mr Crowley-Milling, had spent the majority of his working life in Switzerland as a physicist at the European Organisation for Nuclear Research (CERN). In 1986 he contacted the Royal Society to discuss the prospect of leaving his and his wife’s cumulative estates to the Society. As the couple had no children, setting up fellowships with the Society would mean the family name would be kept alive after their deaths.

Whilst resident in Switzerland, the couple made wills to this effect in 1991, which concerned their worldwide assets.

Mr Crowley-Milling was advised in 2006 to make an additional Swiss will which dealt with his Swiss assets. After doing this, he got in contact with a firm in England and made a second will relating to his British assets. Following the death of his wife in 2009, he wished to made specific gifts to a niece, the children of a deceased niece as well as a carer. Mr Crowley-Milling contacted the same firm to do this.

The will was worded in the same way to the one made in 2006, except from the specific gifts. It stated:

‘I declare that:

(a) I am domiciled in England;

(b) this will and any codicil to it shall be construed and take effect according to English law;

(c) this will and any codicil to it shall extend only to property of mine which is situated at my death in the United Kingdom.’

When he wrote his wills as well as when he passed away, the majority of Mr Crowley-Milling’s estate was within numerous offshore accounts in Jersey and the Isle of Man. Accounts would pass under the will after the payment of legacies to the Society, as long they were ‘situate in the United Kingdom’.

Therefore, the deceased would die partially intestate if the accounts were not classed as UK assets. As he had no children and his wife had also passed away, his next of kin were the specific legatees.

When considering the United Kingdom’s meaning in a technical sense, it does not encompass the Isle of Man or the Channel Islands. Under the entry of United Kingdom, Stroud’s Judicial Dictionary states:

‘The United Kingdom is a union of England and Wales with Scotland forming Great Britain (Union with Scotland Act 1706) and Northern Ireland (Union with Ireland Act 1800, Government of Ireland Act 1920). So apart from interpretation clauses the use of “United Kingdom” in statutes shows that only Great Britain and Northern Ireland, but not the Channel Islands or Isle of Man are included therein.’

This is further confirmed by Schedule 1 to the Interpretation Act 1978 which states: ‘The United Kingdom means Great Britain and Ireland’ whereas ‘British Island means the United Kingdom, the Channel Islands and the Isle of Man.’

The main matter raised was whether these definitions could include the offshore accounts.

Where the wording in a will is unclear, the courts will look to Lord Neuberger’s judgement in the Supreme Court decision of Marley v Rawlings [2014] UKSC 2. This involves interpreting the will as if it were a contract, and so the concern of the court involves seeking the parties’ intention by deciphering the meaning of certain words. This is done:

(a) in the light of
– (i) the natural and ordinary meaning of those words,
– (ii) the overall purpose of the document,
– (iii) any other provisions of the document,
– (iv) the facts known or assumed by the parties at the time that the document was executed, and
– (v) common sense, but

(b) ignoring subjective evidence of any party’s intentions.

Thus, the factual matrix surrounding the parties at the time of the will’s creation is a matter to be considered. Any subjective evidence of party intention however, should not be.

However, an additional construction aid is also available where wills are concerned, contained in section 21 of the Administration of Justice Act 1982 (AJA).

This enables the admission of any evidence of the testator’s subjective intention in so far as:
a) any part is meaningless
b) the language used in any part is ambiguous on the face of it, or
c) evidence, other than evidence of the testator’s intention, shows that the language used in any part of it is ambiguous in the light of surrounding circumstances

The judge concluded that the case of Mr Crowley-Milling fell under subsection (c) of s.21 of the AJA.

At the date of the will being written, the assets had been almost exclusively in offshore accounts.

Stating that he did not wish for his minor beneficiaries to inherit anything at too early a stage, Mr Crowley-Milling had also been in correspondence with the solicitors in regards to the appropriate age for them to take their legacies. This indicated it was unlikely that he had possessed any intention to pass major assets onto them through intestacy.

After this extrinsic evidence had been attained, locating an intention to include the offshore accounts became much easier. Indicators of this intention included:

  • The assets concerned had been listed under the heading ‘my assets in England’
  • Over a significant period of time, intention had been demonstrated that the Society should inherit his entire estate
  • When the 2006 will was made, he possessed no UK assets
  • The wording was identical to that in the 2009 will

Nugee J also considered an application to alter the will under section 20 of the AJA, on the chance that he was wrong in his decision. The statute provides that an application must be completed in 6 months however, and in this case that point had already passed. He looked to the case of Re Salmon [1981] Ch 167 and concluded that in that by applying the guidelines in that case, it would be just to allow the period to be extended.

Section 20 permits rectification of a will if the court is satisfied that the will is so expressed that it fails to carry out the testator’s intentions. This must be the result of either:
(a) a clerical error; or
(b) a failure of the draftsman to understand the instructions of the testator.

Unlike the majority of requests for rectification, this particular case fell under subsection (b).

This case indicates the level of consideration which should be given to the use of precise terminology when writing a will. When additional assets are being dealt with in a second will, it may be preferable to refer to them as ‘other than those which are in X’; ‘X’ which may refer to the other will. If this language had been used in the case of Mr Crowley-Milling, the chance of his assets not being encompassed within the will may have been reduced.

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