Succession: construction

Chp 10

narrow approach - Re Skyes, Re Lewis, Re Rowland

broad approach - Perrin v Morgan. What appears the most probable meaning. to ascertain from the will the t'or's intention

HL abandons literalism:
Perrin v Morgan: earlier case law established that money meant money held in cash, but not residuary personalty. TIX's estate was worth more than 30,000 and consisted almost entirely of stocks and shares. If only count cash, she would die almost wholly intestate.

Reluctance of chancery lawyers to abandon literalism:
Re Rowland -

General rules of construction:
- expressed intentions: Jones v Midland Bank, Anthony v Donges. Very limited power to omit/subsititute: Re Whitrick.
- construe words in their ordinary state - money could be interpreted as including all of the t'or's property (Perrin v Morgan). Re Trundle, Re Barne's WT. secondary meaning may prevail if:
i) Ordinary meaning does not make sense (Re Smalley)
ii) T'or supplies his own dictionary: Re Lynch
Capicious is ok: Gilmour v MacPhillamy
- technical words must be given their technical meaning. This rule is subject to contrary intention (Re Bailey)
- a will must be construed as a whole: Re Macandrew's WT, Higgins v Dawson

Specific rules of construction
- a will speaks from death: s.24 1837 Act: reference to property shall be construed to speak and take effect as if it had been executed immediately before the death (unless contrary intention, Re Sikes, Re Evans)
s.24 does not apply to description to persons (Re Whorwood)
- words denoting relationship:
children:
illegitimate children - s.1 Family Law Reform Act 1987
legitimated children - s.5 Legitimacy Act 1976
adopted children -s.39 Adoption Act 1976
issue: remoter descendants are prima facie included
 next-of-kin: prima facie those who are in the nearest degree of blood relationship. (Spouse is not, Garrick v Lord Cauden)
survivors- Re James's WT: those who were alive when t'or died. Re allsop: include persons born after t'or died.
-Golden rule: Re Harrison: you ought to read the will so as to lead to testacy
- falsa demonstratio rule: wrong description does not prevent a gift passing. Re Price, NSPCC v Scottish NSPCC
- eiusdem generis
- inconsistent provisions: rule of last resort. Later provision prevail over the earlier (Re Hammond). But earlier gift prevails (Re Gare)

Class-closing rules = rule in Andrew v Partington
*class gift: a gift to a class, consisting of persons who are included under some general description, and bear a certain relation to t'or
the rules are controversial: re Charters, Re Henderson's Trusts

i) immediate gift without qualification: Viner v Francis
ii) postponed gift without qualification:
iii) immediate gift with qualification: Andrew v Partington
iv) postponed gift with qualification:
- these rules do not apply if contrary intention (Re Edmondson's WT, Re Chapman's Settlement)

Types of extrinsic evidence
i) direct evidence: expression by t'or
ii) circumstantial evidence: armchair principle.

Admissibility of extrinsic evidence
*extrinsic evidence: evidence outside the will itself. Court cannot rewrite a will (Re Willliams)
 - t'or died after 1982, s.21 AJA 1982:
s.21(1)
a. meaningless (Kell v Charmer)
b. ambiguous language
c.
patent ambiguity: ambiguity on the face of the will
latent ambiguity: ambiguity in the light of surrounding circumstances