Case law: Court ruling on interpretation of wills highlights risks of loose wording

People making wills should ensure they are worded clearly and unambiguously, or risk that in the event of a dispute, the courts will interpret it by applying an objective test of what the will-maker must have intended the words to mean.

A testator had divorced his wife and a court order was made in 2007 requiring him to pay annual maintenance, adjusted for inflation, for his two children until they reached 18 or finished their college education. He also had to pay their school fees, and agreed to maintain and assign his life insurance for the benefit both of his children and his ex-wife.

He married again, but fell seriously ill in 2012. Despite his divorce and remarriage, his two children spent a lot of time with him during his illness.

He made the will in 2014 when he was so ill he could no longer work. The will was made on the basis of a series of communications with his accountant and former business partner, and a financial advisor. At roughly the same time, he stopped paying maintenance (and the school fees) as he could no longer afford it, and applied to the court to vary the maintenance order. However, he died before the court could make a ruling.

One clause in his will said:

"I give to my daughter … and my son … 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 is reduced then the reduced level can be accounted for."

After he died, the Court of Appeal had to decide what this clause meant. It ruled that the test to apply when construing a will is virtually the same as the test applied when construing a commercial contract. That is, the objective test of what a reasonable person in possession of all background information reasonably available to the testator at the time of the will would think it meant "(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".

In this case, the Court found that the clause showed the testator understood when he made his will that maintenance payable to children under a court order would not automatically survive his death, but that he wished it to continue to be paid anyway, despite the fact he had stopped paying maintenance and applied to reduce the payments.

It therefore found he intended his estate to continue paying sums equivalent to the maintenance he was paying before his death under the 2007 court order, and the effect of the clause was to gift annuities to his children on the same terms.

Such problems with potential ambiguities are more likely to occur with DIY wills, or those drafted in a hurry at the last minute, when people can be stressed and often emotional. Proper professional advice is strongly recommended in all circumstances.

Operative date

• Now

Recommendation

• People making a will without professional help, or in stressful circumstances or under time constraints, should ensure each clause is drafted clearly and unambiguously - or risk the courts interpreting the will, based on an objective test of what the will-maker must have intended the words to mean

Case ref: Tish v Olley [2018] EWHC 1069