Will construction claims and availability of ‘subjective intention’ evidence

Lessons from Beasant v. Royal Commonwealth Society for the blind [2022] EWHC 1319 (Ch.)

Gavin McLeod

Many wills give rise to what are thought to be ambiguities. A number of these instances of lack of clarity are compounded by the passage of time, and the review of the will after the death of the testator. What might once have seemed an obvious meaning at the time of execution, and especially given the communications passing between the testator and the drafter, may by then no longer seem obvious. One is then quite possibly in the realm of the construction (if not also rectification) of the will.

The exercise of the construction of the will has many similarities with that of construing contracts, and the essentials are to like effect. Prominent amongst these is the rule that the exercise is objective. The basic rule is that the words used are to be assessed on an objective basis (and as to what they are reasonably to be understood as meaning), having regard to relevant contextual background. Evidence of that background may be admitted in light of the ‘armchair principle’: i.e. that the court puts itself into the circumstances of the testator and of the facts and circumstances known to him at the time of the execution. It will then seek to construe the words deployed objectively against that backdrop. What the court is not ordinarily empowered to do, however, is to admit evidence of the testator’s actual, subjective, intention.

Statute has since intervened to limit the perceived harshness of this. s.21 of the Administration of Justice Act 1982 accordingly provides:

21.— Interpretation of wills—general rules as to evidence.

(1) This section applies to a will— (a) in so far as any part of it is meaningless; (b) in so far as the language used in any part of it is ambiguous on the face of it; (c) in so far as 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.

(2) In so far as this section applies to a will extrinsic evidence, including evidence of the testator’s intention, may be admitted to assist in its interpretation.

Unsurprisingly, there is often much wish to seek to admit evidence of the testator’s actual intention. There have even been some general indicators in the case law on s.21 that the courts should look to find s.21(1) met where it can, so as to allow for such evidence to be admitted. For example, in Re: Huntley [2014] EWHC 547, it was remarked that: “it is … both desirable and appropriate that the concept of ambiguity in Section 21 of the 1982 Act should be broadly interpreted”.

However, the Beasant case represents a useful reminder of the fact that s.21 comprises specific wording which does in fact tend to limit the circumstances in which such evidence of actual intention may be utilised. The court found that, closely analysed, neither s.21(1)(b), nor s.21(1)(c), had been met. Starting with sub-section 1(b), the court found that the relevant part of the will was not ambiguous on its face. Counsel had seemingly accepted that there was no necessary ambiguity in the meaning of the words used, but submitted that there was ambiguity in the effect of deploying those words. Sir Anthony Mann held that this meant that there was no linguistic ambiguity on the face of the will. As he put it: “the will is ambiguous if its wording is capable of bearing more than one meaning”. “One … has to identify the words which are ambiguous”. If the actual words denote a clear meaning, and make sense as a sentence, then the fact that they also give rise to confusion or doubt as to what the intended consequence was does not mean that the statutory gateway is met. As for s.21(1)(c), the background evidence which had been admitted under the ‘armchair principle’ did not show that the language in fact used was ambiguous. It was not as though that evidence cast upon those words another potential meaning. (In another subsection 1(c) case, by way of comparative example, the background evidence had given rise to an ambiguity as to whether the expression “the UK” was actually intended, notwithstanding its usual meaning, to include the Channel Islands and the Isle of Man). Rather, the perceived problem in Beasant again remained in the effect of the language, and understanding whether one or other consequence had been intended in using it. That did not mean that the actual language was ambiguous either on its face on in light of evidence otherwise admitted.

The case is a useful reminder that, whatever the court’s sympathies in general terms for seeking to admit subjective intention evidence for understanding a will (as a unilateral act), the statutory code for the admission of such evidence is itself prescriptive, and has its own clear limitations. It seems as though one will always have to identify an actual ambiguity in wording in a subsection 1(b) or 1(c) case, and not just a lack of clarity as to effect or intended outcome.

Gavin McLeod

St Philips Chambers