Who, then, in law, is my nibling? A handy reminder of the principles to be applied to the interpretation of wills

The recent case of Wales v Dixon & Ors [2020] EWHC 1979 (Ch) gives us a handy review of the principles to be applied to the interpretation of a will and the dangers of taking instructions over telephone without sight of any previous will or knowledge of the family tree.I should say at the start that “niblings”, to which the heading of this article refers, is an informal collective term for ones siblings' children. The use of the words nephews and nieces was required so often in this article that I thought there must be a collective term for them. Well there it is readers, “niblings” (a word acknowledged by Susie Dent, no less). However, it's not in the dictionary, yet, and so I have refrained from using it throughout this article.This claim was brought by the executors of the estate of the late Peter Wales to determine an issue of construction of the deceased's will. By clause 7 of the will the deceased gave his residuary estate to “such all of my nephew's and niece's children”.Well, what did this mean? At the date of death the deceased had two blood nephews and nieces but also three nephews and one niece by marriage. A further nephew by marriage had pre-deceased and left a son. There were 7 children of the blood nephews and nieces and a further 8 on his late wife's side. Were all these children caught or only those related by blood i.e. did the residue fall to be split 7 ways or 15?The law pertaining to the interpretation of wills was set out by Lord Neuberger in Marley v Rawlings [2014] UKSC 2, [2015]:"[19] When interpreting a contract, the court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words:-(a) in the light of:

(i)the natural and ordinary meaning of those words,(ii) the overall purpose of the document,(iii) any other provision 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 intentionsThis approach was just as appropriate for wills as it was for contracts. However, s21 of the Administration of Justice Act 1982, headed “interpretation of Wills - general rules as to evidence”, went further:(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 the 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."So long, therefore, as any of the above requirements was met, direct evidence of the testator's intention was admissible.It is also worth noting that the terms “nephew” and “niece” had previously been subject to judicial interpretation in Re Daoust [1941] 1 All E.R.443. “Unless compelled by context or circumstances” nephew and niece were to be confined to blood nephews and nieces. In the present case Master Teverson concluded that “context and circumstances” was not limited to other provision in the will but to the background facts known to the testator i.e. an approach in line with Marley v RawlingsSo what factors did the Master consider:

1. There was no evidence before the court to suggest that by the words “nephew's and niece's children” that the deceased intended to benefit the children of only one nephew or niece;
2. No assistance was to be derived as to who was an intended residuary beneficiary by the fact a blood nephew was also appointed executor;
3. The marriage lasted 46 years;
4. The prior wills made by the deceased and his wife were part of the surrounding circumstances and background known to the deceased. They show that, throughout the marriage, both the deceased and his wife made mirror wills by which, whichever of them was the survivor, left a bequest or share of residue to members of both their sides of the family;
5. On his wife's death, the deceased inherited the whole of her estate;
6. The decision to skip a generation in the current will with regard to the residue (i.e. to the nephew and nieces children as opposed to the nephews and nieces themselves), was best viewed as neutral. There was no evidence of any agreement or understanding between the deceased and his wife each to benefit only their blood great nephews and nieces;
7. There was no extrinsic evidence to explain why the deceased should have intended to change his will (some 8 months after his wife's death) so as to exclude his wife's family. On the contrary, they remained in contact and visited;
8. The fact a later discretionary trust set up by the deceased defined beneficiaries as “The Children of the nephews and nieces of [the deceased] and his Deceased Spouse...either living or yet to be born” was not part of the surrounding circumstances and could not aid in the construction of the will. Notwithstanding, this could have been interpreted in favour of either side's position; and
9. The manner in which the Deceased's instructions were taken and the poor quality of clause 7 enhances the scope for giving the words an extended meaning when interpreted against the surrounding circumstances known to the Deceased.

The Master found, therefore, that “nephew” and “niece”, in this instance, should be interpreted so to allow all 15 great nephews and nieces to fall into the ambit of clause 7 and be included as residuary beneficiaries.Finally, a warning by the Master of the perils of taking instructions by telephone without sight of any previous will or knowledge of the family tree; it is worth quoting in full:

• The manner in which the Deceased's instructions were taken for the Will greatly increases the likelihood that the Deceased's intention with regard to residue was not understood. His instructions were taken by telephone. The draft will was prepared and sent out on the same day.
• The striking feature of the communications between the Deceased and Janice Smith of The Co-operative Legal Services is the lack of any focus by the Deceased on clause 7 (as opposed to the money bequests under clause 4) and the complete lack of any attempt to establish by name or parent who was intended to receive a share of residue. This illustrates graphically the dangers of taking instructions by telephone from an elderly widower without sight of his prior will or knowledge of his family tree. Clause 7 of the Will is badly drafted. It contains grammatical and punctuation errors. It fails to identify by name or parent or family the intended recipients of the gift. The manner in which the Deceased's instructions were taken and the poor quality of clause 7 enhances the scope for giving the words an extended meaning when interpreted against the surrounding circumstances known to the Deceased. The Deceased's letter to Janice Smith dated 5 December 2008 focuses mainly on the pecuniary legacies. The fact that in the letter the Deceased said the draft will "which I agree with in accordance to my instructions" throws no light on what the Deceased intended by the gift.

This is especially relevant in the current climate where face to face meetings might not be possible.Link to the full judgmentIf you have any questions or need advice, please contact Paul Brown, or another member of the Contentious Trusts & Probate team.