Parry & Clark - The Law of Succession - Kerridge, R - (Roger) - 317-365

Chapter 10
THE CONSTRUCTION OF WILLS
I. GENERAL PRINCIPLES OF CONSTRUCTION AND

ADMISSIBILITY OF EVIDENCE1
A. THE LITERAL AND THE INTENTIONAL APPROACHES TO

INTERPRETATION
A problem arises in relation to the construction, or interpretation,2 of a 10-01

will when the meaning of a word, or passage, in the will is not clear.
Suppose that someone dies leaving a home-made3 will and that in that
will he leaves " ... all my money to my nephews and nieces." There are
at least two potential problems which may arise in relation to these
words. First, there may be a problem about the meaning of all my
money" and secondly there may be a problem as to the meaning of
"nephews and nieces." "All my money" could be read restrictively to
include only coins and bank notes ("money" in the narrowest sense) or
to include also money deposited in a bank, or to include investments
such as stocks and shares, or to include all personalty, or to include the
whole of the testator's net wealth ("money" in the widest sense).
"Nephews and nieces" could be read restrictively to cover only the
children of the testator's brothers and sisters (nephews and nieces by a
blood relationship) or the words could be read in a wider sense to
include also the children of the testator's spouse's brothers and sisters
(nephews and nieces by a marriage relationship).
1 See generally, Hawkins on the Construction of Wills (5th ed., by R. Kerridge, 2000) Chap. 2;
Theobald on Wills (16th ed., 2001) Chap 17; Kerridge and Rivers (2000) 116 L.Q.R. 287.
2 The words “construction" and “interpretation" are assumed here to be synonymous.
Some writers (but not, it seems, judges) have suggested that there is a difference in
meaning; see e.g.T. G. Feeney, The Canadian Law of Wills, Vol. 2 Construction, 3rd ed. 1987 at
? It ought to be true (though the editor can point to no statistics) that the proportion of
home-made wills which raises construction problems is higher than the proportion of
professionally drawn wills which raises them. Professional will draftsmen should be aware
of the pitfalls and should avoid them. What may be thought surprising is how often even
they fail.
229
230 The Construction of Wills
It may be that in a particular case there is no dispute because, for

example, the testator died leaving only a bag of coins and bank notes;
and leaving only nephews and nieces by blood. But that is not very
likely.
1. The two approaches
10-02 When there is a doubt, or dispute, about the meaning of a word, or

passage, in a will, there are two possible approaches. One is to look for
the ordinary meaning of the word or passage; this is known as the literal,
or grammatical approach.4 The other is to look for the meaning intended
by the testator; this is known as the intentional, or inferential, or purposive
approach.5
The difference between the two approaches is at the heart of almost all
construction problems. If the ordinary meaning and the meaning inten¬
ded by the testator are the same, there will be no construction problem. It
is when the ordinary meaning and the meaning intended by the testator
differ that a problem of construction arises.
"For what is it that gives rise to all questions of interpretation? Is it not

that the meaning of the words fails to express the meaning of the
writer?"6 7
When a construction problem arises, given that it almost always

represents a conflict between the two approaches, the literal and the
intentional, it becomes necessary to choose between them. Will the
interpreter choose the ordinary meaning, or will he choose the meaning
intended by the testator?
10-03 By the beginning of the nineteenth century, most English judges were
demonstrating a general, though not entirely consistent, preference for
the literal approach. When there was a dispute as to the interpretation of
words in a will, most of them looked for the ordinary meaning. The
nineteenth century lawyer who did most to champion the literal
approach was Sir James Wigram who brought out the first edition of his
book on the construction of wills in 1831/ The leading apologist for the
intentional approach was F. V. Hawkins, who also wrote a book about
the Construction of Wills8 but whose views on the general principles of
4 It has also been called the objective approach: T. G. Feeney, The Canadian Laiv of Wills, Vol 2,
Construction, 3rd ed. 1987 refers, at p. l,.to "an objective intent presumed by law".
5 It has also been called the liberal, or logical, or subjective approach. This book uses the term
intentional. It is of the essence of this approach that there is no "correct" word to convey
meaning—what matters is that the reader understands a word in the way in which the
writer uses it.
6 Hawkins, Juridical Society's Papers 1858-1863, Vol II, 298, 306.
7 The full title was An Examination of the Rules of Law Respecting the Admission of Extrinsic
Evidence in Aid of the Interpretation of Wills. The first edition appeared in 1831, the second in
1834, the third in 1840, the fourth in 1858 and the fifth in 1914.
8 Concise Treatise on the Construction of Wills 1st ed. 1863; 5th ed., as Hawkins on the Con¬
struction of Wills, 2000.
The Literal and the Intentional Approaches to Interpretation 231
construction were set out in a lecture which he gave to the Juridical

Society in I860.9
2. The confusion between the two approaches
There have, over the years, been a number of examples of confusing the 10-04
two approaches. A clear modern example can be found in the latest
edition of Halsbury's Laws of England:
Para 370. 'The cardinal rule of English law as to the effect of a will is
that the testator's intention ... has effect given to it.”
Para 371. "The first duty of a court of construction is to ascertain the

language of a will ... Where the will must be in writing, the only
question is, what is the meaning of the words used in that writing. The
expressed intention is in all cases taken as the actual intention, what¬
ever the testator in fact intended ... .”10
The first paragraph is intentional. The second paragraph is literal. The

last sentence of the second paragraph says that the literal approach
prevails. The end result is that the first paragraph is meaningless.
3. The advantages of the literal approach
The literal approach seems at first sight to have three advantages over the 10-05
intentional approach.
(a) Guards against danger of speculation
Those who favour the literal approach point out, first of all, that it guards 10-06
against the danger of speculating on what the testator might have chosen
to say in his will about something to which he had actually given no
thought.11
(b) Complies with the Wills Act
The second point that literalists make in favour of their approach is that it 10-07
complies with the Wills Act 1837. Section 9 of the Wills Act requires that
a will must be in writing; so the interpreter must confine himself to what
has been written.12
9 The lecture was published in Vol. II of the Papers of The Juridical Society at p. 298. It was
republished as Appendix C to Prof. J B Thayer's Preliminary Treatise on Evidence at the
Common Law, Boston, 1898. Thayer said that he knew "nothing on [the] subject so well
worth reading."
10 4th ed„ Vol. 50 paras 370 and 371.
11 See Lord Wensleydale (the leading literalist judge of the mid-nineteenth century) m
Abbott v. Middleton (1858) 7 H.L.C. 68,114: and see Re Rowland [1963] Ch. 1,11-12 and 17-18.
12 See Lord Wensleydale (again) in Abbott v. Middleton (1858) 7 H.L.C. 68 and m Grey v.
Pearson (1857) 6 H.L.C. 106.
(c) Words always have the same meaning
10-08 A third advantage of the literal approach is said to be that, whenever a

word appears in a will, it means the same thing. "Nephew" always
means "nephew by blood", and so on. This has the virtue of certainty
and clarity, and it is convenient for will draftsmen. That is why Chancery
practitioners have tended to favour the literal approach.
4. These advantages can be countered
(a) Guesswork and surmise
10-09 But the three apparent advantages of the literal approach can all be
countered. The first apparent advantage—that literalism guards against
guesswork and surmise—is essentially misconceived. The difference
between the literalist and the intentionalist is not that one of them seeks
the testator's unexpressed intention, but that the intentionalist seeks the
meaning given by the testator to the words he used, whereas the literalist
seeks the meaning which would be given to those same words by
somebody else, the fictitious ordinary man.
Both the literal approach and the intentional approach involve surmise
in some circumstances. They both involve surmise in so far as they
permit gap-filling rules of construction. The distinction between gap¬
filling rules of construction and sense-giving rules of construction is
discussed further below.13
(b) Compliance with the Wills Act
10-10 The literalist's second point—that because the Wills Act requires that a
will should be in writing, such writing must therefore be interpreted in a
particular way—is also misconceived, because the Wills Act simply
requires that a will be in writing, without indicating how the writing is to
be interpreted. Some nineteenth century judges go so far as to say that
words have a "correct meaning".14 But words gain their meaning from
the way in which they are used. Different people in different groups, at
different times and in different places, use words differently. Literalists
do not usually refer to "correct" English, but they claim to interpret
words in a will as though they had been written in "ordinary" or
"normal" English. It is instructive to consider again the original hypo¬
thetical example suggested at the start of this chapter where someone
makes a home made will leaving property to " ... my nephews and
nieces ... ." The lawyers' interpretation of the phrase "nephews and
nieces" will probably be blood nephews and nieces, but a looser popular
meaning includes nephews and nieces by marriage. If it can be shown
13 See below, paras 10-34 et seq.

14 In Lowe v. Thomas (1854) 5 De G. M. & G. 315, Knight Bruce L.J. spoke at p. 317 of the
"correct and proper" sense of a word and Turner L.J. spoke at p. 318 of the "proper and
correct" sense. They were Chancery lawyers.
The Literal and the Intentional Approaches to Interpretation 233
that, while the testator was alive, he habitually used the expression "my
nephews and nieces" to include his nephews and nieces by marriage, by
what logic is the phrase in his will to be restricted to the lawyers'
meaning?
(c) Words always have the same meaning
As to the third supposed advantage of the literal approach—that words 10-11

in any will always have the same meaning—it is purchased at a very
high price: the meaning may not be the meaning intended by the testator.
Given that virtually all construction problems arise because the literal
meaning and the meaning the testator intended differ, it must follow
that, in all these cases, the literal meaning is not what the testator
intended.
5. The advantages of the intentional approach
(a) Simplicity
The principal advantage of the intentional approach is that it is much 10-12

simpler to operate. There is no need for technical rules concerning the
non-admissibility of certain types of evidence; there is no need for
detailed learning about the technical meaning of words. Of course, the
reader of a will is entitled to assume that, when a testator uses words, he
generally means by them what others would mean by them; he is also
entitled to assume that the testator has used technical terms accurately.
But all this is subject to evidence to the contrary. The question is, quite
simply, what the testator meant by his words; it is not what someone else
would have meant by his words.
(b) Gives effect to deceased's wishes
Secondly, the intentional approach gives maximum effect to the 10-13

expressed wishes of the deceased. In recent years, statutory interpreta¬
tion has become more purposive and less literal, in an attempt to give
effect to the presumed intentions of the legislator.15 When interpreting
statutes, there are reasons for adopting a literal approach which do not
apply when interpreting wills. The literal interpretation of a statute
protects the reliance of citizens upon it. There is no equivalent reliance by
a beneficiary, or a would-be beneficiary, on the wording of a will. So the
arguments for adopting an intentional approach to the interpretation of
wills are even stronger than those for adopting a purposive approach to
the interpretation of statutes. The only question, when interpreting a will,
should be what the testator intended by the words he used.
15 e.g. Pepper v. Hart [1993] A.C. 593; See generally F. Bennion, Statutory Interpretation, 3rd
ed. 1999.
B. ADMISSIBILITY OF EXTRINSIC EVIDENCE AND THE TWO

APPROACHES
1. Three types of evidence
10-14 There are three types of extrinsic evidence16 which could be admitted to
assist in the interpretation of a will.
(a) Linking zvords to subject matter or to objects—evidence as to "reference"17
10-15 First of all, there is evidence of circumstances surrounding the testator at

the time he made his will, evidence which links him to particular things
or particular people: evidence, for example, that he had one child, two
step-children, no nephews by blood, two nephews by marriage, etc. This
sort of evidence links the words of the will to its subject matter (the
property devised and bequeathed) and to its objects (the persons who are
to benefit). For example, the testator may refer in his will to "my wife
Sophia Burtenshaw" or to "my late mother's diamond engagement ring"
and this kind of evidence will prove that a particular woman is the
person so described18 and/or that a particular ring is the ring to which
the testator referred.
(b) The testator's use of language—evidence as to "sense"19
10-16 Secondly, there is evidence as to the testator's use of language; for

example, the fact that he habitually used the word "money" to cover
investments, or that he used the word "children" when speaking of step
children. This second sort of evidence is sometimes confused with the
first; but it is, essentially, different. It is concerned with the testator's use
of language, his dictionary, the sense in which he used words; and not, as
such, with linking his words to particular persons or' to particular
things.20
(c) Statements made by testator—evidence of dispositive intention
10-17 Thirdly, there is evidence of the testator's dispositive intention, i.e.

statements made by the testator as to the dispositions in his will. The
16 Evidence from outside the will.

17 The distinction between the first sort of evidence (evidence as to "reference") and the
second sort of evidence (evidence as to "sense") was first drawn clearly by the German
linguistic philosopher, Gottlob Frege. Having said this, Wigram, the leading English lit-
eralist (see above, para. 10-03) anticipated Frege to a significant extent; it is essential for a
literalist to be able to disinguish between reference and sense. It is to Wigram's credit that
he understood this. This is explained in more detail in Hawkins on the Construction of Wills
(5th ed., 2000) at pp. 31 et seq.
18 i.e. "referred to".
19 See n. 17.
20 There can, of course, be ambiguities and/or misunderstandings both of reference and of
sense, and sometimes they overlap.
Admissibility of Extrinsic Evidence and the Two Approaches 235
testator may, for example, have told someone that in his will he had left
his property to his nephews and nieces by marriage.
2. Which types of evidence should be admissible?
Evidence as to reference, must be, and always has been, admissible— 10

whether the approach has been literal or intentional. It is essential to
admit evidence to identify a particular person as "my son" or "my son
John" or to identify a particular ring as "my engagement ring". Inten-
tionalists—but not literalists—have always been ready to admit evidence
as to the sense of words. Literalists believe that they know the "ordinary
meaning" of words—"nephew" means "blood nephew", "child" in the
nineteenth century, meant "legitimate child", etc, and so there is no need
for them to enquire what a particular testator meant by such a word
when he used it. Evidence of statements made by the testator was
admissible before 1983 only when there was an equivocation, i.e. a form of
ambiguity which occurred where someone or something was described
in such a way as correctly to describe two or more objects, or two or more
subjects. So a gift to "my grandson John" or a gift of "my grand piano"
would create an equivocation if the testator had more than one grandson
who was called John, or more than one grand piano. These cases were
rare before 1983.21
Having said that literalists believe that they know the "ordinary
meaning" of words and that they have always opposed admitting evi¬
dence as to their sense, they were never entirely consistent. They were
always willing to admit evidence intrinsic to a will22 to show that a tes¬
tator was using words in what they would otherwise consider an unu¬
sual sense. So, for example, although literalists would oppose admitting
evidence from outside a will to show that a testator had used the word
"nephew" in any other than its "ordinary" sense, they would be pre¬
pared to admit evidence that the testator had used the word in an
unusual sense if that could be shown from the context of the will itself. If
the will contained a "dictionary", or if the context in which the word was
used in the will showed that it had to bear an unusual sense, then the
literalists were prepared to accept this sense. The end result was that the
literal rules, combined with the exceptions to them, ended up by being
relatively complicated.23 Whenever a literalist lawyer talked about the
21 There is a problem as to how this third sort of evidence should be described. Hawkins
called it “direct evidence" of the testator's intention, but it is submitted that this is mis¬
leading. Matters are further confused if the first and second sorts of evidence are treated as
though they are the same as one another and are then called “circumstantial". Some writers
have traditionally so described them The description is neat, but it is confusing. The first
two sorts of evidence are different from one another and neither should be described as
circumstantial. The third sort is not direct, and calling it “direct" makes it sound as though
it is a persuasive form of evidence, which it has never been (though it is admissible in many
more cases after 1982 than it was before 1983, see below, paras 10-26 et seq.).
22 Evidence from the will itself.
23 Wigram compressed the literal rules into seven Propositions and his book was a dis¬
cussion of these seven Propositions. They are set out in full in Hawkins on the Construction of
Wills (5th ed., 2000), Chap. 2).
“context" of a will, that meant that he was going to give to a word a

sense which he did not think was its ordinary sense—the "context" was
an escape route for the literalist.
3. The approach taken by judges during the nineteenth century
10-19 During the course of the nineteenth century, most judges who had to
deal with cases relating to the interpretation of wills, tended, most of the
time, to adopt the literal approach. First instance judges who dealt with
construction cases were Chancery lawyers; and Chancery lawyers were
generally more likely than their Common Law counterparts to be lit-
eralists. But it followed from this that when cases reached the House of
Lords—where there would be, relatively speaking, more Common law¬
yers—they were more likely to be decided according to the intentional
approach.24
C. THE HOUSE OF LORDS ABANDONS LITERALISM
10-20 A particular problem with the literal approach was that lawyers who
talked about giving words their "ordinary meaning" seemed sometimes
not to realise that what they were really doing was to give them a
"lawyers' meaning", i.e. the meaning the words would have had if they
were being used by lawyers. To give words in a home-made will the
meaning they would have if they had been used by a lawyer, when they
were written by someone who was not a lawyer, was not an approach
which it was easy to justify. A direct challenge to the literal approach was
bound to come; and it came in the 1940s with the case of Perrin v. Mor-
gan.
1. Perrin v. Morgan
10-21 A woman died leaving a home-made will in which she directed that "all
moneys of which I die possessed shall be shared by my nephews and
nieces now living." There could have been two problems here: (i) with
the meaning of moneys-, and (ii) with the meaning of nephews and nieces. In
fact, as the woman was unmarried, and so had no nephews and nieces by
24 See, for example, Gorringe v. Mahlstedt [1907] A.C. 225, where the Court of Appeal had
adopted a literal approach, while the House of Lords found the sense of the words intended
by the testator. The dividing line between the literalist Chancery lawyers and the inten-
tionalist Common lawyers was certainly not rigid and there were a number of exceptions on
both sides. The House of Lords judge who was the most enthusiastic supporter of the literal
approach was Lord Wensleydale, a Common lawyer, who repeatedly insisted that the
words in a will should be given their ordinary meaning. The judge who most enthusias¬
tically championed the intentional approach was Lord St Leonards, a Chancery man. The
contrast between the two approaches can be seen most clearly in the judgments of these two
judges in the case of Grey v. Pearson (1857) 6 H.L.C. 106,10 E.R. 1234, two to one decision in
favour of the literal approach.
25 [1943] A.C. 399.
The House of Lords Abandons Literalism 23 7
marriage, there was only one problem—the meaning of moneys. Earlier

case law26 had established that the word "money" or "moneys" meant
money held in cash, money in the bank, debts owed to the testator but not
net residuary personalty. It was also quite clear that, in many of these
cases, the literal approach had led to a result not intended by the testator.
In Perrin v. Morgan the testatrix's estate was worth more than £30,000
and consisted almost entirely of stocks and shares. She obviously
intended the stocks and shares to pass under the word "moneys"
because, if they did not, she would die almost wholly intestate. The
House of Lords reversed the Court of Appeal,27 which had (reluctantly)
followed the earlier case law, and instead gave the word "moneys"a
wide reading.
The decision was unanimous, but the result was reached by two dif- 10-22
ferent routes. No member of the House referred to any general theory.
The focus was simply on reversing the earlier case law. But there was a
straightforward split between the Chancery lawyers and the non-Chan-
cery28 lawyers. The former—Lords Russell of Killowen and Romer—gave
a wide interpretation to the word "moneys" by finding it in the "con¬
text" of the will, i.e. by saying that the will had to be read as a whole and
that the context showed that the word "money" in this particular will
did not bear the meaning usually given to it. In other words, they were
affirming that the word "money" had an "ordinary meaning" but that
they were not going to adopt it in this particular case. This was the
standard way of appearing to follow the literal approach, but escaping
from it on the special facts of the case. The non-Chancery lawyers—
Viscount Simon L.C. and Lords Atkin and Thankerton—simply decided
that the word "moneys" had no strict and primary sense.
The reasoning of the majority in the House of Lords in Perrin v. Morgan
had driven a coach and horses through the literal approach as it had been
applied, or had been purported to have been applied, for more than a
hundred years. The decision of the majority was to refuse to give a well-
known word its "strict and primary acceptation"29 because the testatrix
had not intended it to have this sense.
The decision in Perrin v. Morgan could have, and should have, led to a
completely different attitude towards the interpretation of home-made
wills.30 But the two Chancery lawyers had not agreed with the approach
taken by the other three, and Chancery lawyers were reluctant converts
26 Starting with Shelme/s case (1725) Gilb. 200 and continuing through to Jones v. Codings
[1933] Ch. 920 (Farwell J.). One case stood against the line of the authorities: Lynn v. Kerridge
(1737) West 172.
27 Lord Greene M.R., Luxmoore and Goddard L.JJ. The Court of Appeal decision is
reported at [1942] Ch. 345.
28 They were not all Common lawyers: Lord Thankerton was a Scot.
29 This is Wigram's phrase to cover "ordinary meaning" or "correct meaning".
30 The problem is nearly always with home-made wills. The literal approach works well
enough for wills drafted by lawyers, provided they are competent lawyers, because lawyers
use lawyers' language and the literal approach translates it as if it were lawyers' language.
So, for wills drafted by lawyers, the literal and the intentional approaches should, generally,
yield the same result.
to the new approach. How reluctant was shown, twenty years after
Perrin v. Morgan, in Re Rowland.31
2. The reluctance of Chancery lawyers to abandon literalism—Re

Rowland
10-23 Trevor Rowland, a young doctor, was offered a three-year contract with
the South Pacific Medical Service. He was to be based in Fiji, but would
have to travel, in the course of his work, by boat or aeroplane to other
islands. Dr Rowland was married; his wife, Shirley, was a little younger
than he was; they had no children. Before they left England, Dr and Mrs
Rowland both made similar home-made wills. Dr Rowland's will was
not particularly elegant. It contained a long-winded provision whereby
he devised and bequeathed all his property to his wife: and then came
the following words "in the event of the decease of the said Shirley
Rowland preceding or coinciding with my own decease, I give and
bequeath ..." and he then gave everything to his brother and to his
infant nephew.
10-24 About two years after Dr and Mrs Rowland arrived in Fiji, they were
travelling on a boat between two islands when the boat vanished. About
70 people, all on board, died.32 There was no indication that Mrs Row¬
land had died before her husband. The question of construction was this:
had Mrs Rowland's death coincided with her husband's death. The judge
at first instance33 and two judges in the Court of Appeal,34 decided that it
had not. Their reasoning was that "coincided with" meant the same as
"was simultaneous with" and that meant that the deaths had to have
taken place at the same point in time. "Simultaneous" means "at the
same time". It was probable that Dr and Mrs Rowland had died seconds,
or even minutes, apart and so, on this basis, their deaths had not
"coincided". As Mrs Rowland was slightly younger than her husband,
she was presumed to have survived him35 and she inherited his estate,
which then passed under her will to her niece, not to Dr. Rowland's
brother and nephew. This is a classic case of literal interpretation. The
words in the will, not written by a lawyer, were given the "ordinary"
meaning which they would have had if a lawyer had written them. The
word "coincide" means "at the same time" when it is used by a lawyer.
It does not, necessarily, mean this when used by a non-lawyer and may
mean "contemporaneous" rather than "simultaneous".
31 [1963] Ch. 1.
32 It was never discovered exactly what had happened, but all those on board must either
have been drowned or, more probably (as the report of the case puts it) have been eaten by
fish.
33 Buckley J.
34 Harman and Russell L.JJ., both Chancery judges; Lord Denning M.R. dissented. Russell
L.J., who later became a Lord of Appeal in Ordinary, was the son of Lord Russell of
Killowen, who was one of the two members of the House of Lords in Perrin v. Morgan who
had not adopted an intentional approach.
The Administration of Justice Act 1982, s.ll 239
The dissenting judge in Rowland was Lord Denning M.R. The style of 10-25
the dissent is, of course, inimitable. Even those who have, by tradition or
inclination, tended to think of Lord Denning's approach to Equity as
controversial cannot fail to admire the clarity with which he set out the
intentional approach. His judgment deserves to be reproduced in full,
but there is room here only for the last paragraph.
"I decline, therefore, to ask myself: What do the words mean to a

grammarian? I prefer to ask: What did Dr Rowland and his wife mean
by the word 'coincide' in their wills? When they came to make their
wills it is not difficult to piece together the thoughts that ran through
their minds: the doctor might well say: 'We are going off for three
years to these far-off places and in case anything happens to either of
us we ought to make our wills. If I die before you, I would like
everything to go to you: but if you die before me, I should like it to go
to my brother and his boy.' She might reply: 'Yes, but what if we both
die together. After all, one of those little ships might run on the rocks
or something and we might both be drowned: or we might both be
killed in an aeroplane crash.' 'To meet that,' he would say, 'I will put in
that if your death coincides with mine, it is to go to my brother and his
boy just the same.' He would use the words 'coinciding with,' not in
the narrow meaning of 'simultaneous,' but in the wider meaning of
which they are equally capable, especially in this context, as denoting
death on the same occasion by the same cause. It would not cross Dr
Rowland's mind that anyone would think of such niceties as [counsel]
has presented to us. I decline to introduce such fine points into the
construction of this will. I would hold that Dr Rowland, when he made
his will, intended by these words 'coinciding with' to cover their dying
together, in just such a calamity as in fact happened: and that we
should give his words the meaning which he plainly intended they
should bear."
That is pure intentionalism.
D. THE ADMINISTRATION OF JUSTICE ACT 1982, s.21
1. The Law Reform Committee's Nineteenth Report
In 1973 the Law Reform Committee produced their 19th report on the 10-26
Interpretation of Wills.36
The Report is not an easy document to follow, but its main conclusions
were clear. Although the Report spent a lot of time discussing Wigram—
the leading nineteenth century exponent of the literal approach its
recommendation was that the literal approach (insofar as it had
36 Law Reform Committee's 19th Report, Interpretation of Wills, Cmnd. 5301.

survived) should be abandoned and that the intentional position should

be adopted.37 This was a re-affirmation of the position taken by the
majority in the House of Lords in Perrin v. Morgan. In effect, it meant that
evidence as to the way in which the testator used language, as to the
"sense" of his words (the second type of evidence listed above)38 should
be admitted. There was, however, a further problem relating to the
admissibility of evidence of the testator's dispositive intention (the third
type of evidence listed above),39 in relation to which the Committee were
not agreed.
2. Section 21 of the Administration of Justice Act 198240
10-27 The section needs to be set out in its entirety:
"Interpretation of wills—general rules as to evidence
21.—(1) This section applies to a will—

(a) in so far as any part of it is meaningless41;
(b) in so far as the language used in any part of it is ambig¬
uous 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."
The overall pattern of section 21 is that section 21(l)(a) covers cases

where the testator has used a word or phrase which appears to have no
meaning; section 21(l)(b) covers cases where he has used a word or
phrase which appears to have several meanings; and 21(l)(c) covers
cases where he has used a word or a phrase which has an ordinary
meaning or meanings, in circumstances which indicate that he may have
intended it to bear not its ordinary meaning, or one of its ordinary
meanings, but some other idiosyncratic meaning. This is what the Law
Reform Committee wanted to achieve.
3. What sort of evidence is, and what is not, admissible?
10-28 Evidence of the testator's use of language is always admissible. It is

always possible to show that the testator used the word "money", or the
word "nephew", or the word "coincide" in a particular sense: and evi-
37 Report para. 49.

38 See para. 10-16.
39 See para. 10-17.
40 The section applies where the testator dies on or after January 1, 1983, Administration of
Justice Act 1982 ss. 73(6) and 76(11).
41 "Is meaningless" must mean "appears to be meaningless" because if part of a will "is
meaningless" it cannot be interpreted.
The Administration of Justice Act 1982,- s.21 241
dence of the testator's dispositive intention (evidence of what he said to

someone about what he had put in his will) can be admitted if part of the
will appears to have no meaning, or if it appears to have several
meanings, but not where a word or phrase has been used which has an
ordinary meaning or meanings and there is no evidence (other than what
the testator said about what he had put in his will) to indicate that he had
used a word or phrase in an idiosyncratic sense.42
4. The case law on section 21
The case law on section 21 is not particularly helpful, but it supports the 10-29
interpretation of the section suggested above. In Re Williams,43 Nicholls J.
decided that the testatrix, when she made her home-made will, had not
really thought through what she wanted to say. Even the most liberal
rule of construction cannot permit a judge to write a testator's will for
him, when the testator had not properly formulated his own ideas. But
there are a number of dicta in the case which support the interpretation
of section 21 set out above.44
A recent case involving a point of construction is Jones v. Midland 10-30
Bank,45 in which section 21 was not mentioned. The testatrix had left her
entire estate to her son and, if he predeceased her, to her nephews. Her
son did not predecease her, he killed her46; so he forfeited the property he
would have inherited.47 The Court of Appeal held that the nephews did
not take under the will because the will did not cover the eventuality
which had occurred.48 As a decision on the construction of the terms of
the will, it is submitted that the decision is correct. It is highly probable
that, had the testatrix thought about what should happen to her property
if her son killed her, she would have wanted her nephews to take it, but it
is virtually certain that she did not think of the possibility and to attempt
to work out what provision she would have made for a situation which
she did not foresee is conjecture; the person interpreting the will should
avoid it, and section 21 does not modify the old law in this respect. But it
is submitted that the correct approach to this sort of case should not be to
attempt to construe the will in the ordinary way, but to note that the
42 Suppose that the testator bequeathed property in his will to “my niece" and that he had
told someone that he intended to leave the property to the daughter of his friend. Suppose
that he had not been in the habit of referring to this person as "my niece" and suppose also
that he had a blood niece. Section 21 would not admit the evidence of his having said that he
intended to benefit the daughter of his friend. But if he had no blood niece, or if he regularly
called the daughter of his friend "my niece", the evidence could be admitted because there
would be (a form of ) ambiguity in the light of surrounding circumstances
43 [1985] 1 W.L.R. 905. ,n^ *
44 See also Gibbs v. Davies Lexis Transcript, July 9,1992; Re Benham's Will Trusts [1995] S.T.C.
210; Watson v. National Children's Home, The Times, October 31, 1995.
45 [1998] 1 F.L.R. 246.
46 He pleaded guilty to manslaughter.
47 [ 'ncl(.r the forfeiture rule—see below. Chap. 14 paras 14-61 et secj. He could apply toi
relief from forfeiture under the Forfeiture Act 1982, but that would be the next stage in the
43 Subject to any application for relief by the son, the estate passed to the person who would
take on the testatrix's intestacy.
killer holds the property he has inherited from his victim on a con¬
structive trust. This gives the court the opportunity to decide what
should happen to the estate without being bound by the strict rules of
construction. Once the constructive trust is recognised,49 the court is
entitled to speculate about what the testatrix would have wanted and to
exercise its discretion accordingly.
II. THE GENERAL PRINCIPLES APPLICABLE TO THE

CONSTRUCTION OF THE WILLS OF TESTATORS WHO DIE ON
OR AFTER JANUARY 1, 198350
A. RULES OF CONSTRUCTION—RULES OF LAW—EQUITABLE

PRESUMPTIONS
1. Rules of construction—rules of law
10-31 When attempting to understand the operation of rules of construction, it

is important to distinguish between rules of construction and rules of
law. Hawkins expressed it in this way in the preface to the first edition of
his book:
"A rule of construction may always be reduced to the following form:-

Certain words or expressions, which may mean either x or y, shall,
prima facie, be taken to mean x. A rule of construction always contains
the saving clause, 'unless a contrary intention appear On the
other hand a rule of law ... (as the rule in Shelley's Case, the rules as to
perpetuity, mortmain, ... etc.) acts independently of intention, and
applies to dispositions of property in whatever form of words
expressed."51
Rules of law, such as the rule against perpetuities, apply irrespective of

the testator's intention; rules of construction do not. One of the problems
with the development of the rules of construction in the eighteenth
century and the early years of the nineteenth century was that some
lawyers, the arch-literalists, tended sometimes to confuse rules of law
and rules of construction.52 They created rules which they called rules of
49 It seems to have been overlooked in this case—as in Re D.W.S [2000] 3 W.L.R. 1910—both
cases are discussed further below, in Chap. 14 at paras 14-78 et seq.
50 See generally Hawkins on the Construction of Wills (5th ed., 2000), Chap. 3.
51 This passage from Hawkins is quoted by Sir William Holdsworth in his History of English
Law 4th ed. (1935) Vol. VII p. 395. In Vol III, at pp. 108-109, Holdsworth discusses the rule in
Shelley's Case and notes that, although it had been recognised as a rule of law in the 17th
century, there was a controversy during the 18th century as to whether it should be
regarded as a rule of construction. Its status as a rule of law was finally confirmed by the
decisions of the House of Lords in Jesson v. Wright (1820) 2 Bligh. 1 and Roddy v. Fitzgerald
(1857-58) 6 H.L.C. 823.
52 Holdsworth, History of English Law, 2nd ed., Vol VII, p. 174 and p. 396.
Rules of Construction—Rules of Law—Equitable Presumptions 243
construction, but applied them in such a way that they were, effectively,
not subject to the testator's intention. In so far as they did this, they were
creating rules of law. When, for example, the judges decided that the
perpetuity rules were going to apply irrespective of the testator's
intention, they were creating rules of law. Conversely, when they deci¬
ded that the class-closing rules53 would be subject to the testator's
intention, they were creating rules of construction. There was some
confusion about this at some stages in the process, but it eventually
became clear which rules were which.54
2. Equitable presumptions
Apart from rules of law and rules of construction, there are rules relating 10
to equitable presumptions; and, in particular, to the equitable pre¬
sumption of satisfaction.55 The equitable presumption of satisfaction
covers three sub-presumptions: (i) the presumption of satisfaction of a
debt by a legacy; (ii) the presumption of satisfaction of a legacy by a
legacy; and (iii) the presumption against double portions. The equitable
presumption of satisfaction operates very much like a rule of construc¬
tion. In fact, it appears to be based on the presumed intention of the
testator.56 The distinction between what may be called ordinary rules of
construction on the one hand, and the equitable presumption of satis¬
faction on the other, has been that evidence of the testator's intention has
always been admissible to rebut,57 or to support, the equitable pre¬
sumption. So the equitable presumption of satisfaction has operated like
a rule of construction, but subject to a more intentionalist regime than the
ordinary rules of construction. Where a testator died before January 1,
1983, and where there was extrinsic evidence of his intention (i.e. of
statements made by him) in relation to a provision in his will, such
evidence could be admitted if it related to the equitable presumption of
satisfaction (or to an equivocation)58 but not if it related to some other
kind of ambiguity. It can now be admitted in virtually all cases; so the
person construing the will does not need to worry about drawing a line
53 See below, Chap. 11.

54 There is one set of rules which appear to be rules of law but which should properly be
regarded as rules of construction. These are the ademption rules. Most leading textbooks
appear to assume that they are rules of law—see below, Chap. 14 paras 14-36 et secj and see
Ashburner v. Macguire (1786) 2 Bro. C.C. 108; Stanley v. Potter (1789) 2 Cox. 180; and Harrison
v. Jackson (1877) 7 Ch. D. 339, 341. The rules relating to ademption appear to have become
rules of law at a time when literalism was at its height and when some people were failing
to distinguish properly between rules of construction and rules of law. Now that the dis¬
tinction between rules of construction and rules of law is clear, it may be time to consider
whether the rules relating to ademption should not be regarded as rules of construction.
55 See Chap. 13. It is clear that the presumption of satisfaction is an equitable presumption
and not an ordinary rule of construction. But there is some doubt as to whether the rule that
a legacy to an executor is conditional on his taking office is an equitable presumption or is
an ordinary rule of construction. The distinction is of no significance if the testator dies on
or after January 1, 1983.
56 Re Cameron [1999] Ch. 386.
57 Re Tussaud’s Estate (1878) 9 Ch.D. 363.
58 See above, para. 10-18.
between the equitable presumption of satisfaction and other problems of

construction.59 This represents a simplification.60
B. WILLS DRAFTED PROFESSIONALLY AND HOME-MADE WILLS
1. Significance of the distinction
10-33 One effect of section 21 of the Administration of Justice Act 1982 is to

emphasise the difference, for construction purposes, between wills
drafted by lawyers61 and home-made wills. It is surprising that in the
pre-1983 cases very little is said about this distinction. Many judges
interpreted home-made wills in exactly the same way that they inter¬
preted wills which had been drafted professionally. The biggest problem
with the rules of construction as they were applied by literalists before
Perrin v. Morgan62 (and to some extent after Perrin v. Morgan but before
the enactment of section 21) was that literalists gave words in home¬
made wills the meaning, the sense, which those words would have had
for lawyers. This is what happened in Re Rowland.63 Section 21 of the
Administration of Justice Act 1982 puts an end to this. It means that
words in home-made wills should be given the sense (as well as one can
establish it) which was intended by those who wrote them. But wills
drafted by lawyers will continue to be construed—as they always have
been construed—as though they had been drafted by lawyers.
2. Rules which state what sense words have—contrasted with gap-

filling rules
10-34 Consideration of the distinction between wills drafted by lawyers and

home-made wills ties in with another distinction which is seldom
referred to. There are two types of rules of construction which apply to
wills. First, there are rules which specify, or attempt to specify, the sense
which should be given to words in a will—for example, the rule which
says that “nephew" should be assumed to mean blood nephew.64 Sec¬
ondly, there are rules which attempt to fill gaps in the will: to provide
what it is to be assumed that the testator intended when he has said
nothing, or has appeared to say nothing, about a particular possibility;
59 There have not been many reported cases in recent years relating to the equitable pre¬
sumption of satisfaction, but see Re Cameron [1999] Ch. 386, discussed below in Chap. 13.
60 The equitable presumption of satisfaction is not a major problem, but getting rid of the
distinction is a simplification. The equitable presumption of satisfaction is discussed further
in Chap. 13.
61 The word "lawyers"in this context encompasses all those who provide a professional
will-drafting service for clients.
62 [1943] A.C. 399 see above, paras 10-21 et seq.
63 [1963] Ch.l see above, paras 10-23 et seq.
64 See Hawkins on the Construction of Wills (5th ed., 2000), Chap. 12.
Wills Drafted Professionally and Home-Made Wills 245
for example, the class-closing rules,65 or the substitution rule whereby if a

testator's child pre-deceases him, the child's issue take in his place.66 The
distinction between rules which lay down the sense to be given to words
or expressions on the one hand, and gap-filling rules, on the other, is not
rigid. There is a shading between the extremes.67 But it is significant in
relation to the distinction between professionally drawn wills and home¬
made wills.68 Home-made wills will continue to be subject to the gap¬
filling rules. Home-made wills are, in fact, more likely to be subject to
these rules than professionally drawn wills, because home-made wills
traditionally contain more gaps.
Where a testator dies on or after January 1, 1983, and section 21 of the 10-35
Administration of Justice Act 1982 applies, someone construing a will
should first consider whether the will was drafted by a lawyer, or was
home-made. If it was professionally drafted, the traditional rules
applicable to discovering the sense of words will, by and large, apply.
Lawyers use lawyers' language. Competent professional will draftsmen
use language knowing that particular words or expressions have been
held in the past to have particular meanings and intending them to have
these meanings. They will avoid words or expressions which their
training has taught them may lead to suggestions of ambiguity. They will
also know about the gap-filling rules and will know how they will apply.
If, on the other hand, a will is home-made, the gap-filling rules should
apply69 but the traditional rules which assist in deciding on the sense to
be given to words or expressions which have been used should be
applied, insofar as they are applied at all, only with extreme caution.70
This is because these rules tend to give a lawyers' sense, possibly an old-
fashioned sense, to words and phrases; and what needs to be sought is
not the lawyers' sense but the testator's sense.
65 See below. Chap. 11, paras 11-10 et seq.

66 See below. Chap. 14, paras 14-22 et seq.
67 At one end of the spectrum, some rules lay down the sense in which particular words or
expressions are to be understood. For example, s. 26 of the Wills Act 1837 says that "land"
includes leases. That is a straightforward rule of construction. At the other extreme, s. 18A
of the Wills Act says that a former spouse is deemed (for most purposes) to have died at the
date when the marriage was dissolved. That is not truly a rule of construction. It is a rule
imposed on the basis that it is assumed that that is what the testator would have put in his
will, if he had been asked to think about something to which he had (at the time when he
made his will), almost certainly, given no thought at all. It is suggested that s. 24 of the Wills
Act, which says that a will speaks from death, is essentially a construction section, but s. 33,
the substitution section, is more or less speculative. Section 25, covering lapsed and void
devises, falls somewhere in between.
68 Where, again, the distinction may not be rigid, and there may be some shading.
69 This is, of course, on the assumption that there is no indication of a contrary intention—
but if there were such an indication, there would be no true gap.
70 Re Minchell's W.T [1964] 2 All E.R. 47 "one testator's nonsense is no guide to another
testator's nonsense."
v •
3. The use of technical legal expressions by testators who draft their

own wills
10-36 There is a line of pre-1983 cases which holds that where someone has, in
his will, used a lawyer's term of art, he will be assumed to have used it as
a lawyer would have used it. The cases do not, in general, appear to
distinguish between wills drafted by lawyers and wills which are home¬
made; it is submitted that a clear line should, for this purpose, be drawn.
10-37 When a legal term of art appears in a will drafted by a lawyer, it
should be assumed, as a question of construction, that he has used it as a
lawyer would use it and has given it the lawyers' meaning/1 But in
relation to home-made wills, it is submitted that the rule should be that
technical legal expressions should be construed to mean what the testator
meant, not what a lawyer72 would have meant. The fact that the
expression is a technical legal expression is not something which a lay¬
man necessarily realises. The commonsense result was reached in some
pre-1983 cases by relying on “context".73 But there are other pre-1983
cases where judges took a resolutely literal line.74 If there ever was a rule
to the effect that when a layman has used a lawyer's term of art, he will
be assumed to have used it as a lawyer would have used it, it has been
abolished by section 21 of the Administration of Justice Act 1982. There is
now no particular significance in legal terms of art used by laymen. What
matters is what the testator intended. Section 21 of the Administration of
Justice Act has relatively little effect on the interpretation of profession¬
ally drawn wills, but it makes the interpretation of home-made wills
simpler.
4. Wills drafted by incompetent professional draftsmen
10-38 When a legal term of art appears in a will drafted by a lawyer, or some
other professional will draftsman, it should be assumed, a$ a question of
construction, that he has used it as a lawyer would use it and has given it
the lawyers' meaning. But if it can be shown that the professional
draftsman was incompetent and used a word with a lawyers' meaning in
a different sense, the words he has used should be given the meaning he
intended them to have, not the ordinary lawyers' meaning. An example
where this sort of problem can occur is where an incompetent profes-
71 It should be assumed, as a question of construction, but, even in this case, where the will
has been drafted by a lawyer, it should be possible to demonstrate that the particular
draftsman did not use the terms as a lawyer would ordinarily use them. The assumption
that a professional will draftsman has used technical terms in the same way as other
(competent) professional will draftsmen would use them is not an irrebuttable presump¬
tion. This is discussed further below, see para. 10-38.
72 A competent lawyer—an incompetent lawyer might not have meant it anyway; see n. 71
above.
73 See Re Bailey [1945] Ch. 191 “residuary legatee" construed as "residuary beneficiary" so
that "residuary legatee" took not only personalty but also realty (most of the residue was
realty).
74 See Re Cook [1948] Ch. 212 "all my personal estate whatsoever" held not to include realty
(most of the residue was realty).
Wills Drafted Professionally and Home-Made Wills 247
sional draftsman drafts a legacy which is intended to be a legacy to

charity, but he uses wording which is technically inappropriate. If the
testator and the draftsman intend the gift to be a gift to charity, it should
be a valid gift to charity, even if the wording is technically inapt. The
same principle should apply in any case where an incompetent will
draftsman uses language in a way in which his more competent collea¬
gues would not use it. This means, of course, that there is no absolute
dividing line between professionally drawn wills and home-made wills.
In all cases the words used should be given the meaning that the person
using them intended. But although there is no absolute dividing line, it
may still be assumed that lawyers use lawyers' language and use terms
of art as (other) lawyers use them.
5. Speculation
It was noted above that those who favour the literal approach claim that 10-39
it guards against the danger of speculating about what the testator might
have chosen to say in his will about something to which he had actually
given no thought.75 But the problem is then to distinguish between (i) the
case where the testator has thought about something, and has intended
to cover the situation in his will, but has given poor expression to his
intentions; and (ii) the case where he has not thought about something at
all, or has forgotten to cover the situation in his will. The dividing line
between the two is not quite as rigid as it might at first appear.
Even before the enactment of section 21 of the Administration of Jus¬ 10-40
tice Act 1982, it was possible to find different judges taking different
attitudes to the problem of speculation. An example of a refusal to
speculate is Re James's Will Trusts,76 where the testator's children took life
interests in his residuary estate, each child taking an equal share. As each
child died, his share passed to his issue, but if a child died without issue
his share passed to "my surviving children". The straightforward
meaning of these words was that the share passed to the deceased child's
surviving brothers and sisters but not to the issue of other brothers and
sisters who had died before him. The result seems arbitrary and it is
probable that the testator, who had begun by adopting a stirpital dis¬
tribution, would not, had he thought about it, have intended it. Never¬
theless, the ordinary meaning of the words was clear and that was the
meaning Buckley J. gave them.77 But Re James's Will Trusts can be con¬
trasted with the slightly earlier case of Re Whitrick,78 where T by her will
left her entire estate to her husband and provided that "in the event of
my husband ... and myself both dying at the same time" it should be
held upon trust for X, Y and Z equally. T's husband predeceased her and
consequently, according to the literal meaning of the words used, the gift
to X, Y and Z failed and T's entire estate passed as on her intestacy. The
75 See para. 10-06.

76 [1962] Ch. 226, 234.
77 The will had been drafted by a solicitor
78 [1957] 1 W.L.R. 884.
Court of Appeal79 held that it was clear from the will as a whole that T
intended, by means of the gift to X, Y and Z, to provide for the con¬
tingency of her husband's not surviving her.80 The will was therefore
read as if it had directed that X, Y and Z were to take if T's husband
predeceased her, as well as if they both died at the same time.81
10-41 There is a final point which needs to be noted in relation to specula¬
tion. Gap-filling construction rules are rules of speculation. The class¬
closing rules82 say that, although the testator has expressed no intention
in relation to the relevant matter, it will be assumed that he would have
wanted to put a particular provision in his will. This could be justified on
the basis that it is assumed that the testator had thought about the pro¬
blem, but had not given clear expression to his thoughts; but it is highly
probable that in most cases the testator has given the matter no thought
at all. The truth is that these are situations which occur repeatedly: tes¬
tators do not think about them, and rules have to be invented to deal
with them. A purist might object that they are, in fact, not true con¬
struction rules, but quasi construction rules: speculation rules which may
be ousted by proof that the testator did not intend them to apply.83
C. CASES WHICH WOULD HAVE BEEN DECIDED DIFFERENTLY

HAD THE TESTATOR DIED AFTER 1982
1. Re Sykes84 and Re Lewis's Will Trust85
10-42 One significant advantage of the intentional approach to the interpreta¬

tion of wills is that it is not necessary for the interpreter to distinguish
79 Reversing Harman J.
80 See also the very similar Canadian case of Re Harmer [1964] 42 D.L.R."(2d) 321 (Ontario
CA) affd sub nom Kilby v. Myers [1965] S.C.R. 24.
81 Whitrick like Re James's W.T., is a case of a professionally drawn will. In each of the two
cases, something odd seems to have happened, though it is not entirely clear what. Whitrick
seems to be a case where words had been omitted, probably by clerical error, and were facts
like this to recur today it might well be a case for rectification. James is more likely to be a
case where neither the testator nor his draftsman thought things through properly. Whitrick
is a case where the problem was solved by a form of construction which amounted to
rectification—see above, paras 5-39 et seq.
83 It is not particularly helpful to spend time discussing whether these are true construction
rules or quasi construction rules, but it is true that there is a significant element of spec¬
ulation in them. Insofar as they are regarded as rules of construction, they appear to con¬
tradict the rule that an interpreter must never speculate. Both literalists and intentionalists
permit speculation when they adopt gap-filling construction rules. An intentionalist must
do so on the basis that he is adopting an objective-purposive (or "assumed intentional")
approach to fill the gap. In fact, the more one attempts to classify detailed rules of con¬
struction, the more obvious it becomes that many of them are based, at least in part, on
speculation. It was always an exaggeration for literalists to claim that they did not permit
speculation. They were, in truth, selective about when they would permit it
84 [1940] 4 All E.R. 10.
85 [1985] 1 W.L.R. 102.
Pre 1983 Cases 249
between "reference" and "sense".86 Where testators died before 1983,

literalists needed to distinguish between the two sorts of evidence and,
where there appeared to be a conflict between them, they would find
themselves in difficulties. They usually decided that the "correct" sense
of the testator's words would prevail over what they knew he was
referring to, and so they ended up by making a nonsense of the will. Two
good examples of this are Re Sykes87 and Re Lewis's Will Trusts.88 In Sykes
the testator bequeathed "all my ... horses" to his wife. He had, at one
time, owned some racehorses outright, but two years before he made his
will he had registered his wife with the Jockey Club as a part-owner of
the horses and, from then on, he and his wife were tenants in common.
The question was whether the testator's interest as a tenant in common
passed to his wife under the bequest of "all my horses". Bennett J. held
that it did not. He dealt with the case on the basis that the correct sense of
the words "my horses" was "the horses which I own outright" and he
then made this sense prevail over the reference which he must have
known the testator intended—a reference to the interest which the tes¬
tator had in the horses which he did not own outright. The result in Sykes
is as incomprehensible to the non-lawyer as the result in Rowland.89
In Re Lewis's Will Trusts90 the testator left "my freehold farm" to his 10-43
son. The farm was, in fact, owned by a company in which the testator
held 75 per cent of the shares. His son held another 20 per cent and the
son's wife the remaining 5 per cent. Scott J. held that the testator's 75 per
cent shareholding did not pass. It is submitted that this case is even
clearer than Sykes. There was no genuine dispute as to the meaning (i.e.
the sense), of the word "farm". This was not a case where, for example,
there was a problem as to whether the word "farm" included neigh¬
bouring woodland, which would have been a genuine dispute as to
sense. This was a problem about what was meant by "my freehold farm"
when the testator had no freehold farm, but held 75 per cent of the shares
in a company which owned one. The case can only be justified by saying
that the sense of the expression "my freehold farm" must prevail over
what everyone knows was the reference intended by the testator—to
whatever interest he had in the farm. This case is an example of an
extreme literalist approach. It can well be argued that the case was
incorrectly decided, even on the basis of the law as it stood before 1983;
but it should not have been decided in the way it was if the testator had
died after 1982.91 The words "my freehold farm" should be given the
meaning which the testator intended them to have.
86 See above, paras 10-14 et seq.

87 [1940] 4 All E.R. 10. The will was professionally drawn.
88 [1985] 1 W.L.R. 102.
89 Had the husband not transferred an interest in the horses to his wife before he made his
will, his will would have given her the horses; because he made her a co-owner while he
was alive, she ended up with less than if he had done nothing.
90 [1985] 1 W.L.R. 102. The will was professionally drawn.
91 The testator died in 1978.
2. The NSPCC case
10-44 NSPCC v. Scottish NSPCC,92 was almost certainly wrongly decided, even
on the basis of the law as it stood before section 21 of the Administration
of Justice Act 1982 was enacted. The result would certainly be different
today.93
The testator was a Scotsman who had lived all his life in Scotland. He
made a will, in Scottish form,94 in which, inter alia, he bequeathed a
number of legacies to Scottish charities. Among these legacies was a
legacy to the National Society for the Prevention of Cruelty to Children.
The question was whether the legacy belonged to an English charity
called the National Society for the Prevention of Cruelty to Children, or
to a Scottish charity called the Scottish National Society for the Preven¬
tion of Cruelty to Children. The House of Lords held, unanimously, in
favour of the English charity.95
10-45 Before the enactment of section 21, the approach adopted by English
law and Scottish law to the construction of wills was the same: the literal
approach.96 The decision was that the testator correctly described the
English charity, there was no ambiguity, and as Earl Loreburn put it:97
"The accurate use of a name in a will creates a strong presumption

against any rival who is not the possessor of the name mentioned in
the will. It is a very strong presumption and cannot be displaced
except in exceptional circumstances."
No authority is given for this statement; it is implied that it is self-

evidently correct.
Those who argued in favour of the Scottish NSPCC appear to have
accepted that where a person who is not a charity is "accurately
described" that is normally the end of the matter. They claimed, how¬
ever, that charities should be treated differently. It is submitted that the
House was correct to reject this proposed distinction. No worthwhile line
can be drawn between charities and non-charities for this purpose. But
why say that, when anyone is "accurately described", the presumption
in his favour can be displaced only in "exceptional circumstances"? This
is almost certainly based on an uncritical application of the literal
approach—words must always be given their strict and primary sense.
The problem in the NSPCC case was not, however, a problem of sense, but
a problem of reference. Suppose that a testator leaves a number of
92 [1915] A.C. 207.

93 At least, it would be different if it were an English case. It was a Scottish case and s. 21
does not apply in Scotland. Nevertheless it is submitted that it should be decided differently
even if s. 21 were not to apply—see below.
94 The report of the case does not specifically state whether the will was professionally
drawn or home-made. Earl Loreburn referred to it [1915] A.C. 207, 211, as “a Scotch will"
but it was implicit in almost everything which was said about it that the will was pro¬
fessionally drawn.
95 Reversing the Court of Session, [1913] S.C. 412.
96 It still does; see Gloag and Henderson, The Law of Scotland, (10th ed 1995) 772
97 [1915] A.C. 207, 212.
Construction of Gifts to Charity 251
bequests in his will to friends and former colleagues at work. Among

these bequests is one to (say) Edwin Smith—with no further description
or identification. Let it be supposed that the testator had a friend who
was known as Edwin Smith but that this man's full name, the name
appearing on his birth certificate, was Frederick Edwin Smith. Let it also
be supposed that someone else called Edwin Smith, and only Edwin
Smith, could be found in the town, or elsewhere. Who would get the
legacy? Of course Frederick Edwin Smith would get it. That is this case—
a case of reference, which has nothing to do with section 21,98
3. Errors of drafting in professionally drawn wills—questions of

negligence
These are discussed further in Chapter 15. 10-46
III. CONSTRUCTION OF GIFTS TO CHARITY"
There remains one significant problem of interpretation, and it relates 10-47

particularly to home-made wills.
1. Objects of charitable trust must be exclusively charitable
In English law, a gift in trust for charitable objects is good, but a gift to
objects which are not exclusively charitable is void.1 A charitable trust
does not require certainty of objects provided all potential objects are
exclusively charitable.2 This requirement raises potential construction
problems.3 What words will suffice in a home-made will to demonstrate
that the testator intended his gift to be exclusively charitable?
2. Morice v. Bishop of Durham
In Morice v. Bishop of Durham4 the testatrix bequeathed her residuary 10-48

personalty to the Bishop of Durham5 upon trust to pay her debts and
98 Were this sort of case to arise in England today, it would be covered by s. 21, but it has
been suggested above that it should have been decided in favour of the charity intended by
the testator, even before s. 21 was enacted. The point would not be academic if the case were
to arise (again) in Scotland, because Scotland has no legislation equivalent to s. 21.
1 There are exceptional cases of non-charitable purpose trusts, but it seems that their scope
will not be extended. Re Astor's S.T. [1952] Ch. 534; in any case, they are not true trusts, but
appear to operate as quasi powers.
2 Tudor on Charities (8th ed. 1995), 131.
3 The rule that a charitable trust does not require certainty of objects provided all potential
objects are exclusively charitable is a rule of law, part of the law of charitable trusts, but
when it is a question as to what words make a gift exclusively charitable, that is a question
of construction
4 9 Ves. 399; 10 Ves. 522.
5 Whom she appointed as her sole executor.
legacies and dispose of the ultimate residue "to such objects of bene¬
volence and liberality as the Bishop ... in his own discretion shall most
approve of." Sir William Grant M.R. held that the gift failed6 because it
was not exclusively charitable. The Bishop appealed to Lord Eldon, who
upheld the Master of the Rolls.7
3. Gifts to ecclesiastical charities in the late eighteenth and early

nineteenth centuries
-49 During the latter part of the eighteenth century and the earlier part of the
nineteenth century, judges who had to resolve disputes between charities
(especially ecclesiastical charities) and testators' families usually found in
favour of the families. The laity feared the wealth of the Church8 and the
judges reflected public feeling. The Mortmain Act, passed in 1736, had
been designed to prevent testators from devising land to charity and it
remained in force until the end of the nineteenth century.9 Morice was not
a case of a devise of land, but a gift of residuary personalty; so the
bequest would have been valid if it was a valid bequest to charity. It was
declared invalid on the basis that the gift was not exclusively charitable10
and this result was reached by taking a very literal approach to the
wording of the bequest in order to invalidate a bequest to which the
judges were not sympathetic.
Even after the attitude of the courts towards charities in general
seemed to soften, there appears to have been a residual anti-clericalism
which manifested itself in some harsh decisions.11 The cases are not easy
to follow.12
6 9 Ves. 399.
7 10 Ves. 522. At first instance there were three issues; (i) was the gift for the personal
benefit of the Bishop? (ii) was it a valid charitable trust? (iii) if it was not, was it a valid non-
charitable purpose trust? It was clearly not a gift for the personal benefit of the Bishop, who
disclaimed the application of any part of the property to his own use. And Sir William held
that English law does not generally recognise non-charitable purpose trusts. It is in relation
to this issue (the non-recognition of non-charitable purpose trusts) that the case is best
remembered and usually cited. But the issue which is of concern in the present context is the
charity issue - did the words which appeared in this will create a trust which was exclu¬
sively charitable?
8 G.H. Jones, History of the Law of Charity 1532-1827, p. 109.
9 Until the enactment of the Mortmain and Charitable Uses Act 1891. Even under the 1891
Act, land devised to charity had normally to be sold within a year of the testator's death—
though the charity could retain the proceeds of sale. The 1891 Act was repealed by the
Charities Act 1960 and since 1960 charities have not been required to sell land which has
been devised to them.
10 During the latter part of the eighteenth century and most of the nineteenth century, a gift
of land by will to charity would be void, and so those arguing in favour of the testator's
family did not need to claim that such a gift was not exclusively charitable. They could
argue that the gift was charitable and it would fail. This may explain why the judges were,
on the whole, willing to find that gifts of land by will were gifts to charity (and, therefore'
void) while gifts of pure personalty were not validly made to charity.
11 See Re Rumball [1956] 1 Ch. 105; Re Garrard [1907] 1 Ch. 382; Dunne v. Byrne [1912] A C
407; Re Davies (1932) 49 T.L.R. 5; Re Stratton [1931] 1 Ch. 197; Farley v. Westminster Bank
[1939] A.C. 430.
12 "... in this notoriously difficult field some degree of fineness of distinction is, I think,
inevitable"; Lord Evershed M.R. in Re Rumball [1956] 1 Ch. 105 at 113.
Construction of Gifts to Charity 253
4. Gifts for "benevolent", "philanthropic", or "public" purposes
The gift in Morice had been declared void on the basis that the words 10-50
"benevolence" and "liberality" were wider than "charity". It was sub¬
sequently held that gifts for "benevolent",13 or "philanthropic",14 or
"public" purposes15 were also non-charitable. A line then began to be
drawn between disjunctive and conjunctive constructions. Where there
were objects which were "charitable or benevolent", such gifts would
normally be void,16 but gifts for purposes which were "charitable and
benevolent" were normally valid.17 What was clear was that the line
between what was held to be charitable and what was held not to be
charitable was a fine one; and some judges drew distinctions which most
laymen, and many lawyers, found hard to understand.
5. Chichester Diocesan Fund and Board of Finance v. Simpson18
In his professionally-drawn will, Caleb Diplock directed his executors to 10-51

apply the residue of his estate "for such charitable institution or insti¬
tutions or other charitable or benevolent object or objects in England" as
they should in their absolute discretion select. Farwell J. held that this
was a valid charitable bequest19 by reading the will as a whole and by
trying to see what the testator intended by the words "or benevolent" in
the context of the will. But Farwell J. was reversed by a unanimous Court
of Appeal20 and the Court of Appeal was upheld by a 4-1 majority in the
House of Lords.21
At first sight, the decision of the House of Lords in Simpson was much
like many other literal decisions. But Simpson was different: the challenge
was launched by Caleb Diplock's cousins after almost all the money had
been distributed to over 100 charities. The personal representatives were
liable, and the recipients were also liable to the extent that the personal
representatives were unable to pay-22
13 James v. Allen (1817) 3 Mer. 17.

14 Re Macduff [1896] 2 Ch. 451.
15 Vezey v. jamson (1822) 1 S. & S.69.
16 Re Jarman (1878) 8 Ch.D 584.
17 Re Best [1904] 2 Ch. 354.
18 [1944] A.C. 341.
19 [1940] 1 Ch. 988.
20 The judgment of Goddard L.J. is well worth reading for its expression of his distaste tor
the literal approach which he felt compelled by authority to adopt.
21 As Professor Scott put it in an article in the Harvard Law Review:
"The Lord Chancellor, Viscount Simon, regretted the result but felt bound by prior
decisions. Lord Macmillan and Lord Porter discussed the authorities and concurred,
without expressing regret. Lord Simonds concurred and seemed to take an intellectual
satisfaction in invalidating the bequest. Lord Wright dissented. (1945) 58 Harv. L.R. 548.
22 See Ministry of Health v. Simpson [1951] A.C. 251. This case is discussed below, in Chap.
25.
6. Where testator dies on or after January 1, 1983 leaving property to

'"benevolent" purposes
10-52 On the supposition that Caleb Diplock's intention was to leave the
money to charity it is submitted that the words he used should be given
the meaning he intended them to have.
Caleb Diplock's will was professionally drawn and the mistake should
not have been made, because the draftsman should have used the for¬
mula "charitable and benevolent purposes" rather than "charitable or
benevolent purposes" in order to achieve a valid charitable bequest. It is
submitted, however, that even in the case of a professionally drawn will,
if it is clear that the testator intended his property to go to charity, such a
gift should be interpreted to give it validity. The presumption that words
used by lawyers should be interpreted to give them the lawyers' sense
should not be carried so far as to mean that they should be given the
lawyers' sense when the lawyers' sense is to invalidate the gift and it is
known that neither the testator nor draftsman could have intended such
an outcome.
A good example of the sort of problem which could arise is Re Atkin¬
son's Will Trusts23 where a solicitor drafted a will in which, inter alia, the
testatrix bequeathed her residuary estate to be divided "between such
worthy causes as have been communicated by me to my trustees in my
lifetime". No causes were communicated and the question was whether
the testatrix had shown general charitable intent. Had the word "chari¬
table" been substituted for the word "worthy" there is no doubt that
general charitable intent would have been found. The question was
whether "worthy" could be read as meaning the same as "charitable".
Megarry V.-C. held that it could not. This is the traditional, pre-1983,
approach. It is suggested that if a similar case were to arise where the
testator dies on or after January 1, 1983, the court should, relying on
section 21, hold that the clause was intended to cover objects which were
exclusively charitable.24
23 [1978] 1 W.L.R. 586.

24 A-Gfor the Cayman Islands v. Wahr-Hansen [2001] 1 A.C. 75 is not a case concerning the
interpretation of a badly drafted will. It concerns a memorandum of agreement in which
funds were settled (inter alia) on "organizations ... operating for the public good"_there
was also mention of "worthy individuals". It was held that the beneficiaries were not
exclusively charitable. The case is, it is submitted, correctly decided: but this is not an
example of an incompetent draftsman who has intended to create a charitable trust and
failed to use the "correct" wording; it is a case of an attempt to hide funds from the
Norwegian banking and Revenue authorities.
Specific Rules of Construction 255
IV. SPECIFIC RULES OF CONSTRUCTION
Interpretation sections in the Wills Act and in other legislation (other

than section 21)
There are a number of sections, in the Wills Act 1837 and in other leg- 10-53
islation, which lay down the sense which is prima facie to be given to
words, or which fill gaps if the testator has failed to cover something in
his will.
Sections 24-33 of the Wills Act 1837 are interpretation sections,25 each
of which contains the proviso "unless a contrary intention shall appear
by the will".26 Section 21 of the Administration of Justice 1982 allows the
person interpreting the will to seek the testator's intention outside it, but
these other sections lay down rules of interpretation which have to be
followed unless a contrary intention shall appear by the will. What hap¬
pens if one of these sections lays down a presumption as to what the
testator intended and it can be shown by evidence extrinsic to the will
that he did not intend this? In this sort of case—and it is not one which is
likely to arise very often—the other sections should prevail, on the basis
of the rule of statutory interpretation that a specific provision (in this
case, the provision in the Wills Act) prevails over a general one, even if
the general one is later.27
By contrast, sections in more recent legislation which are relevant to 10-54
the interpretation of wills do not contain provisos such as "unless a
contrary intention shall appear by the will"; instead, they use expres¬
sions such as "subject to any contrary intention".28 These sections are not
in conflict with section 21 and, when these sections apply, the interpreter
may seek the testator's intention inside or outside the will. These sections
merely give a prima facie indication of the meaning to be given to the
words in the will.
The conflict between the sections in the Wills Act and section 21 is
more apparent than real. The sections were, in the main, inserted to
change the "correct" interpretation of words as it had been applied
before 1838. In other words, they re-interpreted words and phrases to
give them meanings different from those which had been given to them
by literal lawyers in the eighteenth century. It seems ironic, therefore,
that these sections, originally designed to be liberal, now represent the
last vestige of a semi-literal approach.
25 They are interpretation sections in the broad sense (some are gap-filling sections). S.32
has been repealed. See also LPA 1925, s.61 and AEA 1925, s.35.
26 The proviso to s.33 is worded slightly differently—that is because the section has been
substituted—but the substance is the same, see below, Chap. 14, paras 14-22 et seq.
27 See Bennion, Statutory Interpretation, (3rd ed., 1999), section 88.
28 See, e.g. Legitimacy Act 1976, s.5(l).
«
x
Chapter 11
THE CONSTRUCTION OF WILLS: SPECIFIC

RULES OF CONSTRUCTION: THE
CONSTRUCTION OF POWERS
I. GIFTS TO CHILDREN—THE AGE OF MAJORITY-

ASCERTAINING CLASSES—ABSOLUTE/LIFE GIFTS
A. ADOPTED, LEGITIMATED AND ILLEGITIMATE CHILDREN1 2
The position of adopted, legitimated and illegitimate children for the 11-01
purposes of intestacy was considered in Chapter 2.~ Now it is necessary
to turn to gifts by will.
1. Adopted child
Under the Adoption Act 1976 an adopted child is treated as the legit- 11-02
imate child of the married couple who adopted him (or, in any other
case, as the legitimate child of his adopter),3 and not as the child of his
natural parents.4 This principle applies to the construction of the will of a
testator who dies after December 31, 1975, subject to any contrary indi¬
cation,5 and it is immaterial whether the adoption order is made before
1 See generally Hawkins on the Construction of Wills (5th ed„ by R Kerridge, 2000), Chap. 12.
2 See above, paras 2-29 et seq.
3 Adoption Act 1976, s.39(l), (2) and (4): this rule applies to an adoption order made by-a
court in any part of the U.K., the Isle of Man or the Channel Islands, and to certain foieign
adoptions, ibid. s.38. For the protection of personal representatives see below, para. 24-10.
4 ibid. s.39(2); Re Collins [1990] Fam. 56; as to the effect of adoption by one of the child's
natural parents see Adoption Act 1976 s.39(3) and Legitimacy Act 1976, s.4 as amended by
Adoption Act 1976, s.73(3) and Sched. 3. The adopted child retains any interest vested m
possession in him before the adoption, ibid. s.42(4).
5 ibid. s.42(l). In the case of a testator who died before January 1, 1976, the Adoption Act
1958, ss.16,17 and provisions containing references to those sections continue to apply, ibid.
s.73(l) and Sched. 2, para. 6.
257
or after the testator's death.6 Thus, if T dies in 2000, having by his will
given property upon trust for his son X for life and after X's death for X's
children in equal shares absolutely, any child adopted by X (whether
before or after T's death) will be entitled to take, unless there is a contrary
indication in T's will. If X is T's daughter, the same result follows, subject
to an exception which may be applicable in the case of a child adopted by
a woman after she has attained 55 years of age.7
-03 The Adoption Act 1976 sets out two rules of construction (complete
with statutory examples) which are applicable to the will of a testator
who dies after 1975, subject to any contrary indication. The rules relate to
a disposition8 by will which depends on the date of birth of a child or
children. The disposition is to be construed as if:
(i) the adopted child had been born on the date of adoption,9 and
(ii) two or more children adopted on the same date had been born on
that date in the order of their actual births.
but these rules do not affect any reference to the age of a child.10 To take
the statutory example of a gift by T's will to the children11 of X "living at
my death or born afterwards". T dies in 2000 and after T's death X
adopts a child, who was born in 1998. This child is entitled to take under
the gift as a child of X born (applying rule (i)) after T's death, though the
child does not answer to the description of a child of X living at T's death.
The second statutory example is another gift by T's will to the children12
of X "living at my death or born afterwards before any one of such
children for the time being in existence attains a vested interest and who
attain the age of 21 years." X's adopted child is entitled to take under this
gift if he is adopted before any other child attains a vested interest and if
ibid. s.39(6). If the testator T died before January 1, 1976, the adoption order must have
been made before T's death (Adoption Act 1958, s.16(2) and 17(2)): but if T's will or codicil
was executed before April 1, 1959, (i) the adoption order must have been made before its
execution, unless it was confirmed by codicil executed after March 31, 1959 (ibid. Sched. 5,
para. 4(3), (4)), and (ii) the adopted child cannot take if T's will or codicil was executed'
before January 1, 1950 (ibid. Sched. 5, para. 4(1), (2)) unless, exceptionally, the child is
entitled to take at common law. Re Fletcher [1949] Ch. 473; Re Gilpin [1954] Ch. 1; Re Jebb
[1966] Ch. 666, but see J. H. C. Morris (1966) 82 L.Q.R. 196.
7 ibid. s.42(5) provides that "where it is necessary to determine for the purposes of a dis¬
position of property effected by an instrument [i.e. T's will] whether a woman can have a
child, it shall be presumed that once a woman has attained the age of 55 years she will not
adopt a child after execution of the instrument [this may mean after T's death, s.46(3)],
and, ... if she does so that child shall not be treated as her child or as the child of her spouse
(if any) for the purposes of the instrument." If T's daughter X disclaims or releases her life
interest, it may be necessary to determine whether X can have a child: quaere in what other
circumstances it is "necessary".
8 ibid. s.46.
9 As to the effect of adoption by one of the child's natural parents, see ibid, s.43 (which sets
out a statutory example).
10 ibid. s.42(2).
11 Or grandchildren. Another statutory example is to X for life "until he has a child," and
then to his child or children.
12 Or grandchildren.
Adopted, Legitimated and Illegitimate Children 259
he attains the age of 21 years, which is measured from his true date of
birth and not from the date of his adoption. Finally, consider a gift by T's
will to the eldest son of X. At T's death in 2000 X has a natural son (born
in 1998) and an adopted son (born in 1997 and adopted in 1999). If
"eldest" is a reference to the age of a child, the adopted son takes; but
probably it is not and, if so (applying rule (i)), the natural son takes.
By way of exception, an adoption does not affect the devolution of any
property limited (expressly or not) to devolve along with any peerage or
dignity or title of honour, unless a contrary intention is expressed in the
will.13
2. Legitimated child14
Under the Legitimacy Act 1976 a legitimated person (and any other 11-04
person) is entitled to take any interest under the will of a testator who
dies after December 31, 1975 as if the legitimated person had been born
legitimate, subject to any contrary indication.15 As in the case of adop¬
tion, it is immaterial whether the legitimation occurs before or after the
testator's death.16 Again, in the case of legitimation, similar rules of
construction are applicable to a disposition by will which depends on the
date of birth of a child or children as apply (as explained above) in the
case of adoption.17 For instance, if T dies in 2000 having by his will
(which was made before 1970) made a gift to the children of X "living at
my death or born afterwards," a child of X who is legitimated after T's
death by his parents' marriage is entitled to take under the gift as a
legitimate child of X born (under the rule of construction) on the date of
his legitimation.18
13 ibid, s.44; adoption does not affect the descent of any peerage or dignity or title of honour.
14 A legitimated child is one who was illegitimate at the time of his birth, but who becomes
legitimate by his parents' subsequent marriage. Legitimation was introduced into English
law by the Legitimacy Act 1926.
15 Legitimacy Act 1976, s.5(l), (3) and (6) and s.10. In the case of a testator who died before
January 1,1976, the Legitimacy Act 1926, ss.3 and 5 continue to apply. Legitimacy Act 1976,
Sched. 1, para. 2.
16 If the testator T died before January 1, 1976, the legitimation must have occurred before
T's death, Legitimacy Act 1926, s.3(l).
17 Legitimacy Act 1976, s.5(4), (5): as to the effect of posthumous legitimation see ibid. s.5(6),
and as to devolution of property limited to devolve along with any dignity or title of honour
see ibid. Sched. 1, para. 4.
18 Legitimacy Act 1976, s.5(4). If T's will had been made after 1969, an illegitimate child of X
would have been entitled to take: ibid. s.5(5) gives statutory examples but in each example
legitimation appears to have no practical effect if T's will was made after 1969, because the
illegitimate child, or a person related through him, would have been entitled to take any¬
way, unless a contrary intention appeared in the will. Family Law Reform Act 1969, s.15;
Legitimacy Act 1976, s.6(l), (3).
\. « J
3. Illegitimate child
11-05 At common law a gift by will to children, or other relations, was prima
facie construed as referring only to legitimate children, or persons tracing
their relationship exclusively through legitimate links.19 This rule of
construction was reversed by section 15 of the Family Law Reform Act
1969, which applies to a disposition of property by a will or codicil made
after December 31,1969 and before April 4,1988. If the will or codicil was
executed before 1970, it is not, for this purpose, treated as made after
December 31,1969, even if it is confirmed by a codicil executed after that
date.20
(a) Rules of construction under the Family Law Reform Act 1969
11-06 Section 15(1) of the Act lays down two rules of construction:
(i) Any reference (express or implied) to the child or children of any

person X is to be construed as, or as including, a reference to any
illegitimate child of X. If T's will (made after 1969) gives property
upon trust for X for life and after X's death for X's children in
equal shares absolutely, any illegitimate child of X (whether born
before or after T's death)21 is entitled to take.
(ii) Any reference (express or implied) to a person or persons related
in some other manner to any person X is to be construed as, or as
including, a reference to anyone who would be so related if he, or
some other person through whom the relationship is deduced,
had been born legitimate. A gift by T's will (made after 1969) to
X's grandchildren therefore includes both the illegitimate child of
a legitimate child of X and the legitimate child of an illegitimate
child of X.22
(b) Exceptions
11-07 These rules of construction apply only to references to a child or other

relation, where the reference is to a person who is to benefit, or who is
capable of benefiting under the disposition; or where (when such person
is being designated) someone else is referred to as being someone to or
19 For this rule, and the exceptions to it, see generally Hazvkins on the Construction of Wills
(5th ed., 2000), Chap. 12.
20 Family Law Reform Act 1969, s.15(8): see also ibid, s.l(7). For the general rule that a
confirmed will or codicil operates as if it had bee made at the time of its confirmation see
above, para. 7-63.
21 ibid. s.15(7) abolishes any rule of law that a gift to illegitimate children born after T's
death is void as contrary to public policy.
22 Quaere whether it also includes the illegitimate child of an illegitimate child of X, see E. C.
Ryder (1971) 24 C.L.P., 163-164; Law Commission Report on Illegitimacy, Law Com. No.
118, p. 104. See also Prichard [1981] Conv. 343 ("as on intestacy" in will).
Age of Majority 261
through whom that person is related.23 So these rules do not apply to a

gift to X absolutely “if he dies without leaving children"; the word
“children" in this case means legitimate children and, if X dies leaving
one illegitimate child but no legitimate children, X takes absolutely.24
These rules of construction apply “unless the contrary intention
appears". The contrary intention does not need to appear in the will
itself.25
(c) Rules of construction under the Family Law Reform Act 1987
Section 19, of the Family Law Reform Act 1987 changes these rules of 11-08
construction and abolishes most of these exceptions.26 It applies to dis¬
positions27 by will or codicil made after April 3, 1988.28 Under section 19,
references (whether express or implied) to any relationship between two
persons are to be construed without regard to whether the father and
mother of either of them, or the father and mother of any person through
whom the relationship is deduced, were married to each other at any
time. This new rule of construction applies whether or not the reference
is to a person who is to benefit or be capable of benefiting under the
disposition.29
The new rule of construction applies “unless the contrary intention
appears". The contrary intention does not need to appear in the will.30
B. AGE OF MAJORITY
In a will the expressions “full age", “infant", “infancy", “minor", 11-09

“minority" and similar expressions are to be construed by reference to
the provision that a person attains full age on attaining the age of 18.31
This construction applies, in the absence of a definition or of any indi-
23 Family Law Reform Act 1969, s,15(2).

24 See E. C. Ryder, loc. cit. pp. 164-166. And these rules of construction do not affect the
construction of the word "heir" or "heirs" or of any expression which is used to create an
entail, or the devolution of any property which would (apart from these rules) devolve
along with a dignity or title of honour, Family Law Reform Act 1969, s. 15(2) and s. 15(6) No
new entails may be created after 1996, Trusts of Land and Appointment of Trustees Act
1996, s. 2.
25 See above, Chap. 10 paras 10-53 and 10-54.
26 See Law Commission's Second Report on Illegitimacy, Law Com. No. 157.
27 Including an oral disposition, ibid. s.l9(6), e.g. a privileged will made orally.
28 Family Law Reform Act 1987 (Commencement No. 1) Order 1988 (S.I. 1988 No. 425). A
will or codicil executed before, but confirmed by codicil executed on or after, April 4,1988 is
not treated as made on or after that date, ibid. s.19(7).
29 It also applies to the construction of the word "heir" or "heirs" and to any expression
which is used to create an entailed interest (no new entails may be created after 1996, Trusts
of Land and Appointment of Trustees Act 1996, s. 2) but it does not apply to the devolution
of any property which would otherwise devolve along with a dignity or title of honour,
Family Law Reform Act 1987 s.l9(2) and 19(4).
30 See above. Chap. 10, paras 10-53 and 10-54.
31 Family Law Reform Act 1969, s.l.
cation of a contrary intention, if the will was made after December 31,
1969. A will or codicil executed before 1970 is not treated as made after
1969 even if it was confirmed by a codicil executed after 1969.32
The construction of any expression specifying a particular age (for
example, "twenty-one") is not altered by the Family Law Reform Act
1969.33
C. RULES FOR ASCERTAINING CLASSES34
11-10 Wills often contain gifts to a class of beneficiaries. For example, T by his
will may give:
(i) £1,000 to each of the children of X (an individual gift to each

member of a class, not a class gift in the strict sense);
(ii) £10,000 to the children of Y in equal shares absolutely (a class gift
in the strict sense, because the size of a child's share depends on
the number of children who fall within the class)35; and
(iii) £10,000 to the children of Z who attain the age of 21 years in equal
shares absolutely (again a class gift in the strict sense, but subject
to a contingency).
In each of these examples the question may arise whether children who
come into existence after T's death are eligible to take. Of course, T might
have expressed his intention clearly in his will, e.g. by giving £1,000 to
each of the children of X "who shall be living at my death." But, if T has
not done so, the question must be answered by applying certain rules of
construction known as the class-closing rules.36 Which rule is applicable
depends upon whether the gift is:
(1) an individual gift to each member of a class (as in example (i)

above); or
(2) a class gift where each member of the class takes a share at birth
(as in example (ii) above); or
(3) a class gift where a contingency is imposed on each member of
the class (as in example (iii) above).
In the explanation which follows of the class-closing rules reference will

be made to persons who are "living" at a particular time or who "come
into existence" before a particular time. In applying these rules it is
32 ibid, s.l(7): for confirmation see above, paras 7-61 et secj.

33 See E. C. Ryder, loc. cit. pp. 158-160; Cretney (1970) 120 N.L.J. 144, 145.
35 Pearks v. Moseley (1880) 5 App Cas. 714, 723. For the nature of a class gift see below, para
14-14.
36 See J. H. C. Morris (1954) 70 L.Q.R. 61; S.J. Bailey [1958] C.L.J. 39.
Rules for Ascertaining Classes 263
necessary to remember that a child who is en ventre sa mere at that time

(and who is subsequently born alive) is by a legal fiction treated as
already "living", or as having already "come into existence", at that time
if the child may thereby become entitled to benefit as a member of the
class.37
1. Individual gift to each member of a class
In the case of an individual gift to each member of a class, the class closes 11-11
at the testator's death. If T by his will gives a legacy of £1,000 to each of
the children of X, only children of X living at T's death take under the
gift38; if no child of X is living at T's death the gift fails.39 The same rule
applies if the gift imposes a contingency on each member of the class, e.g.
if T gives a legacy of £1,000 to each of the children of X who attain the age
of 21 years or marry. In that case only children of X living at T's death are
eligible to take under the gift, although it is immaterial whether each of
them satisfies the contingency before or after T's death; if no child of X is
living at T's death the gift fails.40
The object of this drastic class-closing rule is to enable the personal 11-12
representatives to distribute T's residuary estate. The rule is a rule of
convenience which fixes the maximum number of members of the class
at T's death, so that the personal representatives may know the total sum
required to meet their legacies and may safely distribute the remainder
of T's estate. If the class did not close at T's death, the personal repre¬
sentatives could not safely distribute T's residuary estate until it had
become impossible for further children of X to be born.
The rule is modified if the will postpones payment of the legacies and
distribution of the residue until the death of a life tenant, e.g. if T gives his
estate upon trust for X for life, and after X's death to pay £1,000 to each of
the children of X and to hold the remainder on trust for Y absolutely. In
that case the class remains open until the death of the life tenant, X, and
therefore embraces children of X who are living at T's death or who come
into existence before X's death.41
The rule is altogether excluded—so that any children of X coming into
existence after T's death may take—if the inconvenience prevented by
the rule either does not exist or is expressly contemplated by the testa¬
tor.42 An instance of the first exception is where the testator directs a fund
of a specified amount to be set aside out of which alone the legacies are
37 Trower v. Butts (1823) 1 S. & S. 181 (such a child is “within the reason and motive of the
Gift"); Storrs v. Benbow (1853) 3 De G.M. & G. 390; Re Salaman [1908] 1 Ch. 4 (such a child is
treated as born if he thereby takes a direct benefit); Elliot v. Joicey [1935] A.C. 209. cf. Re
Corlass (1875) 1 Ch.D. 460 (child en ventre illegitimate, though legitimated before birth). But
see Re Gardiner's Estate (1875) 20 Eq. 647 (which appears to be wrongly decided).
38 Ringrose v. Bramham (1794) 2 Cox 384.
39 Re Belville [1941] Ch. 414 (T by his will gave £10,000 each to any daughters of X born after
the date of his will: held daughter conceived after T's death could not take).
40 Rogers v. Mutch (1878) 10 Ch.D. 25.
41 Att.-Gen. v. Crispin (1784) 1 Bro. C.C. 396.
42 Re Belville, above, at pp. 418-419.
made payable.43 The second exception was held to be applicable in a case

where the testator showed a clear intention that the class should include
any children coming into existence after his death and directed a suffi¬
cient fund to be set aside for this purpose.44
2. Class gift where each member takes a share at birth

11-13 Under a class gift, in the strict sense, the members of the class share the
same subject-matter of the gift, whether equally or in specified propor¬
tions. If the class has not yet closed, the personal representatives cannot
safely distribute a share to a person who is already a member of the class,
because the minimum size of that share is not yet fixed. However, the
personal representatives can safely distribute the remainder of the tes¬
tator's estate. As already explained, in the case of an individual gift to
each member of a class, the object of the class-closing rule is to enable the
personal representatives to distribute the testator's residuary estate. But,
in the case of class gifts in the strict sense, the relevant class-closing rules
serve a different purpose—to enable the personal representatives to
distribute a share of the subject matter of the gift to a person who is
already a member of the class.
A class gift where each member takes a share at birth may be (a)
immediate or (b) postponed.
(a) Immediate gift
11-14 In the case of an immediate gift where each member takes a share at
birth, the class closes at the testator's death if any member of the class is
then in existence45; if no member of the class is then in existence, no class¬
closing rule applies and the class remains open indefinitely.46 To consider
the gift by T's will of £10,000 to the children of Y in equal shares abso¬
lutely. If one or more children of Y are living at T's death, then the class
closes immediately and they alone take under the gift. Onlhe other hand,
if no child of Y is living at T's death, then the class remains open inde¬
finitely and all the children of Y born thereafter take under the gift. This
rule that the class closes at the testator's death if any member of the class
is then in existence applies to an immediate class gift which is vested,
even though payment is directed to be postponed until the youngest
member of the class attains full age,47 or even though a member's share is
43 Evans v. Harris (1842) 5 Beav. 45.

44 tDefflis v. Goldschmidt (1816) Mer. 417 (court directed master to inquire what would be a
sufficient sum to set aside to answer legacies of £2,000 payable to each child of X who might
thereafter be born, having regard to X's age): cf. Butler v. Lowe (1839) 10 Sim. 317.
45 Viner v. Francis (1789) 2 Cox 190 (£2,000 to the children of my late sister B); Re Chartres
[1927] 1 Ch. 466, 471; Re Manners [1955] 1 W.L.R. 1096.
46 Shepherd v. Ingram (1764) Amb. 448; Weld v. Bradbury (1715) 2 Vem. 705; Harris v. Lloyd
(1823) 1 T. & R. 310; Re Chartres, above; Re Bleckly [1951] Ch. 740, 749.
47 Re Manners, above, (gift by T's will to my grandchildren (the children of my son Y) "to be
administered towards their maintenance and education until the youngest is 21 ... and then
distributed equally among them": held grandchildren alive at T's death alone took): see also
Scott v. Harwood (1821) 5 Madd. 332.
liable to be divested in a certain event (e.g. on his death under 21 years of

age).48
(b) Postponed gift
A class gift may be postponed by a preceding life or other interest,49 e.g. a 11-15
gift by T's will of £10,000 upon trust for L for life and after L's death for
the children of Y in equal shares absolutely. In this case the class closes at
the time when the postponement ends,50 but if at that time there is as yet
no member of the class, no class-closing rule applies and the class
remains open indefinitely.51 Consider this last example of a postponed
class gift. If one or more children of Y are living at T's death or come into
existence before L's death, the class closes at L's death and embraces only
children of Y who are living at T's death or who come into existence
before L's death. If any such child dies after T's death but before dis¬
tribution of the £10,000, the child's share passes as an asset of his estate to
his personal representatives.52 On the other hand, if no child of Y is living
at T's death or comes into existence before L's death, then the class
remains open indefinitely and all the children of Y born thereafter take
under the gift. This rule—that the class closes at the time when the
postponement ends—applies to a class gift which is vested, even though
payment is directed to be postponed until the youngest member of the
class attains full age,53 or even though a member's share is liable to be
divested in a certain event.
Thus the same class-closing rule applies to any class gift where each 11-16
member takes a share at birth, whether the gift is immediate or post¬
poned, except that the crucial "class-closing time" is the testator's death
in the case of an immediate gift, and the end of the period of post¬
ponement in the case of a postponed gift. This rule differs in one vital
respect from the more drastic rule applicable in the case of an individual
gift to each member of a class.54 Under this rule, if at the class-closing
time there is as yet no member of the class, the class remains open
indefinitely.
48 Davidson v. Dallas (1808) 14 Ves. 576; Scott v. Harwood, above.

49 e.g. a life interest which is determinable or subject to a condition subsequent. Re Aylwin's
Trusts (1873) L.R. 16 Eq. 585 (life interest determinable on bankruptcy or insolvency): or an
absolute interest subject to a gift over, Ellison v. Airey (1748) 1 Ves. Sen. Ill (to L absolutely,
but if L dies under 21 unmarried, to the children of Y). See also Oppenheim v. Henry (1853) 10
Hare 441 (gift to all my grandchildren, to be divided among them at the end of 20 years after
my death, income to be accumulated meanwhile: held class closed at end of 20 years).
50 Ellison v. Airey, above; Devisme v. Mello (1782) 1 Bro. C.C. 537; Ayton v. Ayton (1787) 1 Co^
327; Middleton v. Messenger (1799) 5 Ves. 136; Walker v. Shore (1808) 15 Ves. 122; Holland v.
Wood (1871) L.R. 11 Eq. 91.
51 Chapman v. Blisset (1735) R. temp. 145; Hutcheson v. Jones (1817) 2 Madd. 124; Re Chartres
[1927] 1 Ch. 466, 471-472; Re Bleckly [1951] Ch. 740, 749 and 755.
52 Devisme v. Mello, above: but if the child held as a joint tenant (which is not the case in the
example in the text) the right of survivorship operates.
53 Smith v. Jackson (1823) 1 L.J.(O.S.) Ch. 231 (gift to children of T's granddaughters to be
paid when youngest attained 21 years).
54 Where the gift fails if there is no class member living at the testator's death.
This class-closing rule, in common with the other rules, is sometimes

called a rule of convenience (though it may appear inconvenient to Y's
children who come into existence after the class has closed). In truth, it is
a rule of construction and it is based upon the supposition that T would
not wish Y's children who are in existence at T's death (or, in the case of a
postponed gift, who come into existence before the time when the
postponement ends) to have to wait for distribution of the capital until it
is no longer possible for further children of Y to be born.55
(c) Acceleration of class gift by failure of preceding interest
11-17 To return to the gift by T's will of £10,000 upon trust for L for life and
after L's death for the children of Y in equal shares absolutely. If L's life
interest fails because (for instance) he predeceases T, the class gift to the
children of Y is accelerated and becomes an immediate (and not a
postponed) gift, so that the crucial class-closing time is the testator's
death.56
If L survives T, but L disclaims his life interest and thereby accelerates
the class gift to the children of Y, does this have the same effect on class¬
closing as if L had predeceased T? Probably the answer is no—the crucial
class-closing time is still L's death. In Re Davies57 L (who had three
children) disclaimed her life interest under T's will, and Vaisey J. held
that the vested class gift in remainder to the issue of L was accelerated,
and that L's three children took to the exclusion of any other issue of L
who might come into existence prior to L's death. But in Re Harker's Will
Trusts58 Goff J. refused to follow Re Davies. He decided that, despite the
acceleration of the class gift in remainder, the class of beneficiaries must
remain open until L's death. It appears likely that the decision in Re
Harker's Will Trusts will be followed. L, by disclaiming his life interest
after T's death, cannot change the composition of the class of beneficiaries
entitled under the class gift in remainder. The class-closing rules are
rules of construction and the proper construction of T's'-will cannot be
altered after T's death by L's disclaimer.
3. Class gift where contingency is imposed on each member
11-18 To turn to the other type of class gift where a contingency is imposed on
each member of the class, e.g. a gift by T's will of £10,000 to the children
of Z who attain the age of 21 years in equal shares absolutely. In this case
55 Re Ward [1965] Ch. 856, 865. See generally for the basis of the rules S. J. Bailey [1958] C.L T
39, 45-48.
56 Sprackling v. Ranier (1761) Dick. 344: as to T's revocation of L's life interest by a codicil see
Eavestaff v. Austin (1854) 19 Beav. 591; Re Johnson (1893) 68 L.T. 20. For acceleration see
below, paras 14-74 et secj.
"7 [1957] 1 W.L.R. 922: see also Re Taylor [1957] 1 W.L.R. 1043, 1047-1048 and Re Chartres
[1927] 1 Ch. 466.
58 [1969] 1 W.L.R. 1124 (L for life, on his death to L's children equally on attaining 21; L
surrendered his life interest; later one child of L attained 21: held the remainder was
accelerated but the class remained open until L's death): see also Re Kebty-Fletcher's W T
[1969] 1 Ch. 339.
the relevant class-closing rule is known as the rule in Andrews v. Par¬

tington.59
(a) Immediate gift
In the case of an immediate gift where a contingency is imposed on each 11-19

member, the class closes at the testator's death if any member of the class
who has satisfied the contingency is then in existence60; if not, the class
closes as soon as one member satisfies the contingency.61 Thus, taking
this last example, the class closes at T's death if any child of Z who has
attained the age of 21 years is then in existence; if not, the class closes as
soon as a child of Z attains the age of 21 years. Once the class closes, any
child already in existence may take under the gift if the child subse¬
quently satisfies the contingency, but any child not already in existence is
excluded from taking.
(b) Postponed gift
A class gift may be postponed by a preceding life or other interest,62 e.g. a 11-20
gift by T's will of £10,000 upon trust for L for life and after L's death for
the children of Z who attain the age of 21 years in equal shares abso¬
lutely. In this case the class closes at the time when the postponement
ends if any member of the class who was in existence after T's death has
satisfied the contingency63; if not, the class closes as soon as one member
satisfies the contingency.64 Applying this rule to this example, the class
closes at L's death if any child of Z, who was in existence after T's death,
has attained the age of 21 years; if not, the class closes as soon as a child
of Z attains the age of 21 years.
In short, the same class-closing rule applies to any class gift where a
contingency is imposed on each member, whether the gift is immediate
or postponed, except that the crucial class-closing time is the testator's
death in the case of an immediate gift, and the end of the period of
postponement in the case of a postponed gift. The rule differs in one vital
respect from both of the rules so far considered: under this rule, if at the
class-closing time there is as yet no member who has satisfied the con-
59 (1791) 3 Bro. C.C. 401.

60 Picken v. Matthews (1878) 10 Ch.D. 264; Balm v. Balm (1830) 3 Sim. 492.
61 Andrews v. Partington, above; Re Mervin [1891] 3 Ch. 197. It is immaterial that no member
of the class is in existence at the testator's death. Re Bleckly [1951] Ch. 740, 749-750.
62 e.g. a life interest which is determinable or subject to a condition subsequent. Re Smith
(1862) 2 J. & H. 594 (life interest determinable on bankruptcy or insolvency); Re Bleckly
[1951] Ch. 740 (whilst wife or widow of X): or an absolute interest subject to a gift over,
Gillman v. Daunt (1856) 3 K. & ]. 48. As to postponement by a direction to accumulate see
Watson v. Young (1885) 28 Ch.D. 436; Re Stephens [1904] 1 Ch. 322; Re Watt's W.T. [1936] 2 All
E.R. 1555.
63 Re Smith, above; Re Canney's Trusts (1910) 101 L.T. 905; Gillman v. Daunt, above. See also
Re Faux (1915) 113 L.T. 81 (one-half of income to A for life and other half to B for life: held
postponement did not end at A's death, B still being alive); Re Paul s S.T. [1920] 1 Ch. 99.
64 Clarke v. Clarke (1836) 8 Sim. 59; Re Smith, above; Locke v. Lamb (1867) L.R. 4 Eq. 372; Re
Emmet's Estate (1879) 13 Ch.D. 484. It is immaterial that no member of the class comes into
existence until after the time when the postponement ends. Re Bleckly, above.
v. . J
tingency, the class does remain open but only until one member satisfies
the contingency.65
This rule, like the other rules, is a rule of construction66 and is based
upon the supposition that T would not wish a child of Z who has
satisfied the contingency to have to wait for distribution of the capital
until it is no longer possible for further children of Z to be born.67
4. Gift of income to a class
11-21 The rules so far considered do not apply to a gift of income to members
of a class, e.g. a gift by T's will of property upon trust to pay the income
thereof to the children of X in equal shares during some defined period.
In this case the class does not close and each instalment of income is
payable to the children of X for the time being living.68 For example, if X
has three children at T's death, the first instalment of income is payable
in third shares to X's three children; if another child of X is then born, the
next instalment is payable in quarter shares to X's four children. This
rule—that the class does not close—applies whether the members of the
class take a share of income at birth69 (as in the last example), or on
satisfying a contingency70 (e.g. a gift of income to the children of X who
attain the age of 21 years in equal shares).
The class-closing rules which apply to gifts of capital are based on
suppositions which are not applicable to gifts of income.71
5. Class gifts to which class-closing rules apply
11-22 The class-closing rules do not, of course, apply to gifts to particular

persons individually; for instance, a gift of property by T's will "to be
divided equally between the children of X, namely A, B, and C" is not a
class gift.72 Again, the class-closing rules do not apply in the case of a gift
on trust for X for life and after X's death for X's children, because it is
impossible for further children of X to come into existence after X's
death: accordingly T cannot be taken to have intended a distribution
before all X's children come into existence.73
The class-closing rules have been applied to a class gift made by T's
will to a limited class of relatives, i.e. to a class which is not capable of
infinite expansion, being limited to one or more particular generations.
65 i.e. not definitely.

66 Re Bleckly, above, at pp. 747 and 750.
67 Re Ward 11965] Ch. 856, 865.
68 Re Ward [1965] Ch. 856 (not following Re Powell [1898] 1 Ch. 227).
69 Re Ward, above.
70 Re Wenmoth's Estate (1887) 37 Ch.D. 266.
71 Re Ward, above, at p. 865.
72 Bain v. Lescher (1840) 11 Sim. 397 (B predeceased T and his share lapsed): see also Havergal
v. Harrison (1843) 7 Beav. 49 ("my brothers and sisters"): see below, para. 14-14.
73 Re Marker’s W.T. [1969] 1 W.L.R. 1124, 1128; Re Kebty-Fletcher’s W.T. [1969] 1 Ch. 339. A
child of X en ventre sa mere is treated as being in existence.
Instances include class gifts made by T's will to the children of X,74 T's
grandchildren/5 T's brothers and sisters/6 the nephews and nieces of X/7
T's great-nephews and great-nieces/8 and T's cousins.79 On the other
hand, the class-closing rules have been held not to apply to a gift by T's
will to an unlimited class of relatives, such as the issue (or the descen¬
dants) of X who attain the age of 21 years. T cannot have intended all X's
issue, born in any generation at any time in the future, to take. Therefore,
the question of construction inevitably arises—what class of issue did T
intend should take? This question is to be answered without regard to
the class-closing rules.80 If the gift is to all of a limited class of relatives, it
only raises the question as to when the gift should be closed as a matter
of convenience, and the class-closing rules provide the answer.
6. Rules excluded by contrary intention
The class-closing rules, being rules of construction, are not applicable if 11-23
the testator has clearly shown a contrary intention. A gift by will to "all
or any" the children of X who attain the age of 21 years is not sufficient
by itself to indicate a contrary intention.81 Again, a gift to all the children
of X "whether now bom or hereafter to be bom" does not indicate a
contrary intention because the words of futurity are capable of referring
only to the period before the application of the relevant class-closing rule
would close the class.82 But the emphatic phrase children of X "whenever
bom" is a particular reference to the future expressly unlimited in time,
and therefore excludes the application of the class-closing rules83: it is
74 Viner v. Francis (1789) 2 Cox 190 (the children of my late sister X); Re Bleckly [1951] Ch. 740
(children of my son X who attain 21).
75 Oppenheim v. Henry (1853) 10 Hare 441 (my grandchildren); Gimblett v. Purton (1871) L.R.
12 Eq. 427 (such of my grandchildren as attain 21); Re Manners [1955] 1 W.L.R. 1096.
76 Re Gardiner's Estate (1875) L.R. 20 Eq. 647.
77 Dimond v. Bostock (1875) L.R. 10 Ch. App. 358 (nephews and nieces of my late husband X,
who were living at his death, excepting P and Q).
78 Balm v. Balm (1830) 3 Sim. 492.
79 Baldwin v. Rogers (1853) 3 De G.M. & G. 649 (my first cousins by my mother's side).
80 Re Cockle's W.T. [1967] Ch. 690 (gift by T's will upon trust for X for life and after X's death
for the issue of X who attain 21 years or being female marry in equal shares absolutely; X
had no issue at T's death: held only issue in existence at X's death were intended to take); Re
Deeley's Settlement [1974] Ch. 454 (again a postponed gift); Re Drummond [1986] 1 W.L.R.
1096.
81 Re Bleckly [1951] Ch. 740, 751: see also Prescott v. Long (1795) 2 Ves. 690 ("all and every the
child and children of his son"); Re Canney's Trusts (1910) 101 L.T. 905; Re Emmet's Estate
(1880) 13 Ch.D. 484 ("all and every the children" of X).
82 i.e. in the case of an immediate gift, the period until T's death, Sprackling v. Ranier (1761) 1
Dick. 344; Dias v. De Livera (1879) 5 App. Cas. 123 (children which may hereafter be pro¬
created): in the case of a postponed gift, the period until the end of the period of post¬
ponement, Scott v. Earl of Scarborough (1838) 1 Beav. 154, 168: see also Re Chapman's S.T.
[1977] 1 W.L.R. 1163.
83 Re Edmondson's W.T. [1972] 1 W.L.R. 183 (an appointment by deed).
v
equivalent to the phrase "at whatever time they may be born", which has
the same effect.84
D. WHETHER GIFT IS ABSOLUTE OR FOR LIFE
1. Presumption that devise passes fee simple
11-24 Section 28 of the Wills Act 1837 enacts that a devise of real estate to any
person without any words of limitation shall be construed to pass the fee
simple, or other the whole interest of which the testator has power to
dispose, unless a contrary intention appears by his will.85 The section
applies to any will made or confirmed after 1837.86 Thus, T's devise of
Blackacre "to X" passes T's fee simple estate in Blackacre to X, unless a
contrary intention is shown by T's will. The rule applies to a devise by T
of any existing interest, e.g. a devise by T "to X" of a rentcharge (which is
vested in T in fee simple at his death) passes the rentcharge to X in fee
simple, unless a contrary intention is shown.87 Since January 1, 1997, it
has been impossible to create new entailed interests, although existing
entails may continue to exist.88 Any testator who wished to create an
entail in any real or personal property by his will after 1925 and before
1997 had to employ the formal expressions which were effective to create
an entail in a deed before 1926, i.e. the word "heirs" followed by words
of procreation or the words "in tail".89
84 Re Edmondson's W.T., above, atp. 188. See also Scott v. Earl of Scarborough, above, (children
of A, B and C "now born or who shall hereafter be bom, during the lifetime of their
respective parents": class-closing rule excluded); Re Ransome [1957] Ch. 348 (such of the
children of C as shall be living at time youngest child of C attains 21 years: class-closing rule
excluded); Re Tom's Settlement [1987] 1 W.L.R. 1021 ("closing date" in deed); cf. Re Clifford's
S.T. [1981] Ch. 63 (compound class). As to the exclusion of the rules by a power of
advancement applicable to vested presumptive shares, see Re Henderson's Trusts [1969] 1
W.L.R. 651.
85 Gravenor v. Watkins (1871) L.R. 6 C.P. 500.
86 Wills Act 1837, s.34.
87 In general, no rentcharge may be created after August 21, 1977 and existing rentcharges
will be extinguished at the end of 60 years from July 22,1977 or 60 years from the date when
they first became payable, whichever is the later: Rentcharges Act 1977. A devisee of a
rentcharge which had been created by will (when that was possible) could take it only for
life unless a contrary intention appeared: Nichols v. Hawkes (1853) 10 Hare 342.
88 Trusts of Land and Appointment of Trustees Act 1996, s.2.
89 Law of Property Act 1925, s,130(l): see also s,130(3) and Re Jones [1934] Ch. 315. For the
effect since 1925 of informal expressions, which would have created an entail in a will
before 1926 (e.g. "to X and his issue", "to X and his descendants", or "to X and his chil¬
dren"), see ibid. s.130(2); Hawkins on the Construction of Wills (5th ed., 2000), pp. 296 et seq. For
the effect of a gift to X, but if he die without issue, to Y, see Wills Act 1837, s.29, and Law of
Property Act 1925, s.134, as amended by Family Law Reform Act 1969, s.l(3) and Sched. 1,
Pt. I; Hawkins on the Construction of Wills, (5th ed., 2000) pp. 362 et seq.
Whether Gift is Absolute or for Life 271
2. Presumption that bequest is absolute
A bequest by T of personal estate "to X" gives X an absolute interest, 11-25

unless a contrary intention is shown by T's will. But if Ts will also
contains a direction that on X's death the same property is to go to Y, this
shows T's intention to give X only a life interest.90
3. Gift over of what remains91
Home-made wills sometimes contain a gift of property "to X," followed 11-26
by a direction that on X's death what remains of the property (or words to
that effect) is to go to Y. The decided cases indicate that at least three
different constructions are possible:
(i) One construction is that X takes absolutely, and the gift over to Y
is void, either because it is repugnant to X's absolute interest92 or
because, construed as a trust, it fails for uncertainty of subject-
matter.93
(ii) Another construction is that X takes a life interest, coupled with a
power to dispose of capital (perhaps only inter vivos, or only by
will), and subject thereto Y takes absolutely.94
(iii) A third construction is that X takes a life interest and subject
thereto Y takes absolutely.95 This construction treats the gift over
to Y of what remains of the property as if it were a gift over to Y of
all the property.
Obviously each of the decided cases turned on the particular wording in

a particular will.96 The same question arises in each case: what intention
90 Re Russell (1885) 52 L.T. 559; Re Houghton (1884) 53 L.J.Ch. 1018; Sherratt v. Bentley (1833) 2
My. & K. 149.
91 See generally Hawkins on the Construction of Wills (5th ed., 2000), pp. 280 et seq.
92 Perry v. Merritt (1874) L.R. 18 Eq. 152 (gift of residuary personalty to X "for her own
absolute use and benefit" gift over to Y after X's death, held void for repugnancy); Hen¬
derson v. Cross (1861) 29 Beav. 216 (gift to X to spend both principal and interest during his
lifetime, gift over to Y should X not spend it, held void for repugnancy); Re Jones [1898] 1 Ch.
438 (gift to X "for her absolute use and benefit so that during her lifetime for the purpose of
her maintenance and support she shall have the fullest power to sell and dispose of my said
estate absolutely").
93 Pushman v. Filliter (1795) 3 Ves. 7; Bull v. Kingston (1816) 1 Mer. 314.
94 Re Stringer's Estate (1877) 6 Ch.D. 1; Re Pounder (1886) 56 L.J.Ch. 113 (X took for life with
power to dispose of capital inter vivos but not by will); Re Sanford [1901] 1 Ch. 939 (X took for
life, with general power of appointment): cf. Re Jones, above.
95 Constable v. Bull (1849) 3 De G. & Sm. 411; Bibbens v. Potter (1879) 10 Ch.D. 733 (gift over to
Y was by codicil); Re Sheldon and Kemble (1885) 53 L.T. 527 (at the decease of X what might
remain of my property to go to Y); In the Estate of Last [1958] P. 137 (at X's death "anything
that is left" to go to Y).
96 Re Minchell's W.T. [1964] 2 All E.R. 47, 49 (the will provided "an outstanding example ot
the toast of the Chancery Bar, 'Here's to the man who makes his own will.' He plainly did
not ... brood on the rules of construction in his leisure time ... 'One testator's nonsense is
no guide to another testator's nonsense'").
did the testator express in his will, read as a whole, with the aid of any
admissible extrinsic evidence?
4. Presumption as to effect of gift to spouse
11-27 If a testator dies after December 31, 1982,97 section 22 of the Adminis¬
tration of Justice Act 1982 provides that a gift by the testator's will to his
spouse shall be presumed to be absolute if two requirements are satis¬
fied:
(i) The gift is made to the spouse “in terms which in themselves
would give an absolute interest to the spouse,"—for instance, T
gives “my house Blackacre to my wife Jane" or “all my property
to my husband John." On the other hand this requirement is not
satisfied if T's gift is, for example, “to my wife Jane (or husband
John) for life."
(ii) The testator purports by the same instrument to give his issue an
interest in the same property—for instance, “after her (or his)
death I give Blackacre (or all my property or what remains of all
my property) to my children equally." On the other hand this
requirement is not satisfied if the gift over is, for example, to “my
nephew George" or “the Oldcastle Dogs' Home."
If these two requirements are satisfied, under section 22 Jane takes

Blackacre (or John takes all T's property) absolutely and T's children take
nothing. However, section 22 is excluded where a contrary intention is
shown—for instance, where T adds, “I direct that my wife Jane shall take
only a life interest in Blackacre and after her death I give Blackacre to my
children equally."
11-28 The purpose of section 22 is to prevent the creation of an “unintended"
life interest for the spouse by a home-made will.98 A testator who makes
his own will often assumes (wrongly) that it is possible to give successive
absolute interests in property, so that his spouse may first enjoy the full
rights of an absolute owner and at her death these rights may pass to
another person. Such a testator may well have no conception of the
nature of a life interest, but he may nevertheless make his will in lan¬
guage which read as a whole (under the law applicable prior to 1983)
expressed an intention to give a life interest, rather than an absolute
interest, to his spouse. If the testator dies after December 31,1982, section
97 Administration of Justice Act 1982, ss.73(6) and 76(11).

98 See Law Reform Committee's, 19th Report, Interpretation of Wills, Cmnd. 5301 (1973),
paras 60-62 and 65.
Whether Gift is Absolute or for Life 273
22 applies but (rather oddly) only where the purported gift over is to the
testator's issue."
5. The rule in Lassence v. Tierney1
Under the rule in Lassence v. Tierney2 (more accurately called the rule in 11-29
Hancock v. Watson),3 "it is settled law that if you find an absolute gift to a
legatee in the first instance, and trusts are engrafted or imposed on that
absolute interest which fail, either from lapse,4 or invalidity, or any other
reason, then the absolute gift takes effect so far as the trusts have failed,
to the exclusion of the residuary legatee or next-of-kin as the case may
be."5 The rule applies to an absolute gift of realty as well as of person¬
alty.6 The rule reconciles two inconsistent provisions in T's will, e.g. (i) an
initial gift of property to X absolutely, and (ii) a subsequent provision
that the property given to X shall be held upon trust for X for life and
after his death for X's children absolutely as tenants in common in equal
shares. If X dies childless, so that the trust for X's children fails, under the
rule the absolute gift to X takes effect; the property therefore passes
under X's will or intestacy and does not pass under T's residuary gift or
as on T's intestacy. The rule imputes to T an intention to modify the
absolute gift to X only so far as is necessary to give effect to the trusts.7
(a) Initial absolute gift
The real difficulty usually lies in determining whether there is an initial 11-30
absolute gift to X; this is a question of construction. If there is, the first
requirement of the rule in Lassence v. Tierney is satisfied. The rule applies
whether the initial gift is made directly to X or to trustees on trust for X.8
In Hancock v. Watson9 T by his will gave his residuary personal estate to
trustees upon trust for his wife for life and after her death to be divided
into five portions, two of which he "gave" to X; his will continued:
99 There may be a slight element of self-contradiction in this part of the Law Reform
Committee's 19th Report, because, once the Committee's principal recommendation as to
the admissibility of extrinsic evidence had been accepted, it is possible to introduce extrinsic
evidence, including all evidence of the testator's intention, to assist in the interpretation of
any provision in the will. This is the only example in the 19th Report of an attempt to deal
with a specific issue of construction. The Law Reform Committee appear to have wanted to
insert a rule to cover the case where the testator has given the matter no thought. In that
respect, they were proposing a rule to cover speculation about what the testator would have
done if he had thought about something about which they considered he would not have
thought.
1 See generally Hawkins on the Construction of Wills (5th ed., 2000), pp. 353 et seq.
2 (1849) 1 Mac. & G. 551.
3 [1902] A.C. 14.
5 per Lord Davey in Hancock v. Watson, above, at p. 22.
6 Moryoseph v. Moryoseph [1920] 2 Ch. 33.
7 Fyffe v. Irwin [1939] 2 All E.R. 271, 282.
8 Re Harrison [1918] 2 Ch. 59 (rule applies to legacy bequeathed to trustees on trust for B).
9 Above. For the extensive case law see Theobald on Wills (16th ed., 2001), pp. 537 et seq.
"But it is my will and mind that the two fifth portions allotted to [X]
shall remain in trust, and that she be entitled to take only the interest...
of the shares so bequeathed to her during her natural life"
and after her death be held upon other trusts, which failed. The House of
Lords held that there was an initial absolute gift of two fifth shares to X,
because T used the words "I give" and referred to these shares as
"allotted" to X. Accordingly, after X's death these two fifth shares
formed part of X's estate.
On the other hand, this first requirement is not satisfied if the words of
gift to X run straight on into a whole series of limitations, so as to form
one system of trusts under which X takes only a limited interest.10
(b) Engrafted trusts fail
11-31 The other requirement of the rule in Lassence v. Tierney is that the trusts
engrafted on X's absolute interest in the property do not (in the events
which happen) exhaust the whole beneficial interest in the property.
These trusts may be declared later in T's will or in a codicil,11 and the
cause of their failure is immaterial.12 Under the rule, the absolute gift to X
takes effect so far as the trusts do not exhaust the whole beneficial
interest in the property.13
II. CONSTRUCTION OF POWERS14
1. General powers of appointment to which section 27 applies
11-32 Unless a contrary intention appears by T's will, section 27 of the Wills
Act 1837 makes a general gift by his will of real or personal estate operate
to exercise a power to appoint real or personal property, provided it is a
power conferred on T to appoint such property "in any manner he may
think proper". If section 27 is applicable, T need not expressly show an
intention in his will to exercise the general power. "It has been often said,
and is now a platitude, that the object of the section was to abolish the
distinction between property and a general power over property,
10 Re Payne [1927] 2 Ch. 1; Lassence v. Tierney, above: see also Re Cohen's W.T. [1936] 1 All
E.R. 103 (estate to be equally distributed amongst T's seven named children "subject to the
provisions and directions hereinafter contained": held no initial absolute gift to a child).
11 Norman v. Kynaston (1861) 3 De G.F. & J. 29.
12 Watkins v. Weston (1863) 3 De G.J. & S. 434 (B died childless); Re Coleman [1936] Ch. 528
(trusts in part void for perpetuity).
13 Re Coleman, above, (engrafted trusts after B's death were (i) discretionary trusts during
life of B's widow and (ii) after her death trust for B's children: discretionary trust void for
remoteness, and under rule income during widow's life formed part of B's estate).
14 For an explanation of powers of appointment, see Hanbury and Martin, Modern Equity
(16th ed., 2001), Chap. 6: for the construction of powers, generally, see Hawkins on the
Construction of Wills (5th ed., 2000), Chap. 11.
Construction of Powers 275
because an ordinary man considers in the latter case that the property is
his own."15
(a) Powers within section 27
Section 27 applies to any power of appointment16 which satisfies the 11-33

three following requirements:
(i) At T's death the power must be capable of being exercised by T by

his will17; section 27 does not apply to a power exercisable by T by
deed but not by will.18 It does not matter whether the power had
already been created at the date of the will, because under section
24 of the Wills Act19 a will speaks from death as to property.20
(ii) The terms of the power must not impose any condition incom¬
patible with the operation of section 27.21
(iii) T must be entitled to appoint "in any manner he may think
proper," i.e. to any objects he may think proper. So section 27 does
not apply to a special power of appointment among a limited
class of objects, e.g. T's children22; and it does not apply to a
"hybrid" power to appoint in favour of anyone except one or
more excepted persons, e.g. except "her present husband, or any
friend or relative of his."23
(b) General gifts within section 27
Section 27 applies to "a general devise of the real estate of the testator, or 11-34
of the real estate of the testator in any place or in the occupation of any
person mentioned in his will, or otherwise described in a general man¬
ner," and to "a bequest of the personal estate of the testator, or any
bequest of personal property described in a general manner". The section
15 Re Jacob [1907] 1 Ch. 445, 449 per Parker J.

16 But not to a power of revocation and new appointment. Re Brace [1891] 2 Ch. 671: see also
Re Salvin [1906] 2 Ch. 459.
17 Re Powell's Trusts (1869) 39 L.J.Ch. 188 (power to appoint to any persons by will only is
within s.27); Hawthorn v. Shedden (1856) 3 Sm. & G. 293.
18 Phillipps v. Cayley (1890) 43 Ch.D. 222, 232 and 234.
19 See Chap. 12.
20 Boyes v. Cook (1880) 14 Ch.D. 53; Airey v. Bower (1887) 12 App.Cas. 263. But s.27 does not
apply to a power created after T's death. Re Young [1920] 2 Ch. 427.
21 Phillips v. Cayley, above; Re Tarrant's Trust (1889) 58 L.J.Ch. 780: see also Re Davies [1892] 3
Ch. 63. But a condition imposing special formalities as to execution and attestation need not
be observed in a formal will when a power is exercised. Wills Act 1837, s.10: see above, para.
9-31.
22 Cloves v. Awdry (1850) 12 Beav. 604.
23 Re Byron's Settlement [1891] 3 Ch. 474; but see Re Harvey [1950] 1 All. E.R. 491. For an
explanation of the difference between general, special and hybrid powers, see Hanbury and
Martin, Modern Equity (16th ed., 2001) pp. 173-174.
applies both to residuary gifts of property24 and to specific gifts of

property described in a general manner.25
Moreover, section 27 applies to a gift by T of general pecuniary lega¬
cies because this constitutes a "bequest of personal property described in
a general manner". If and so far as T's own assets are insufficient for their
payment,26 the legacies are payable out of personal property over which
T had a general power.27
(c) Contrary intention
11-35 The operation of section 27 is excluded if "a contrary intention shall

appear by the will", i.e. if it appears from the will that T, having the
power in mind, did not intend to exercise it.28 The onus of establishing
such a contrary intention from the will lies on those who assert it.29 In
practice such a contrary intention very seldom appears from T's will.30
2. Powers of appointment to which section 27 does not apply
11-36 Section 27 does not apply to a special power, or to a hybrid power. In

order to exercise such a power by will, there must be a sufficient indi¬
cation in the will of an intention to exercise it.31 In general, a reference
either to the power or to the property subject to it constitutes a sufficient
indication for this purpose.32 The testator's intention is, of course, to be
gathered from an examination of the whole of his will, with the aid of
any admissible extrinsic evidence.33
24 Re Spooner's Trust (1851) 2 Sim.(N.S.) 129 ("constituting my son ... my residuary legatee":
held s.27 applied).
25 Re Jacob [1907] 1 Ch. 445; Turner v. Turner (1852) 21 L.J.Ch. 843: cf. Re Brown's Trusts (1855)
1 K. & J. 522. Re Doherty-Waterhouse [1918] 2 Ch. 269 ("all my shares in the Halifax Cor¬
poration New Market consolidated stock": held s.27 applied.) v
2,1 For the rules governing the incidence of general legacies see below. Chap. 22.
27 Hawthorn v. Shedden (1856) 3 Sm. & G. 293; Re Wilkinson (1869) L.R. 4 Ch. App. 587; Re
Seabrook [1911] 1 Ch. 151. An express direction in T's will for the payment of his debts has
the same effect, Laing v. Cowan (1858) 24 Beav. 112; Re Davies' Trusts (1871) L.R. 13 Eq. 163,
166.
28 Scriven v. Sandom (1862) 2 J. & H. 743 (there must be something in T's will inconsistent
with the view that the general gift was meant to exercise the power); Re Thirlwell [1958] Ch.
146.
29 Re Jarrett [1919] 1 Ch. 366, 370; Re Thirlwell, above.
30 Re Jacob [1907] 1 Ch. 445 ("all stocks, shares and securities which I possess or to which I
am entitled": held s.27 applied); Re Doherty-Waterhouse [1918] 2 Ch. 269; Re Spooner's Trust
(1851) 2 Sim. N.S. 129.
31 Re Ackerley [1913] 1 Ch. 510 (special power); Re Lawrence's W.T. [1972] Ch. 418, especially
pp. 428-432 (hybrid power). If the instrument creating the power lays down any special
requirement for its exercise, this must also be complied with, Re Lawrence's W.T., above, at p.
430. But a condition imposing special formalities as to execution and attestation need not be
observed in a formal will when a power is exercised, Wills Act 1837, s.10, and see above,
para. 9-31.
32 Re Ackerley, above, at pp. 514-515: see also Re Holford's Settlement [1945] Ch. 21 (reviewing
some of the case law: "the principle ... is clear. The difficulty lies in the application of it")
33 Re Knight [1957] Ch. 441.
Construction of Powers 277
3. Power to bar entail by will34
Under section 176 of the Law of Property Act 1925 a tenant in tail35 has 11-37
power to bar his entail in any real or personal property by will, and thus
dispose of the fee simple in realty, or absolute interest in personalty, or
any lesser interest36 in such property. A testator may exercise this power
to bar his entail if the following requirements are satisfied:
(i) the testator is of full age and holds the entail in possession37 (not
in remainder) at his death;
(ii) his will is executed after 1925 (or confirmed by a codicil executed
after 1925); and
(iii) his will refers specifically either to the property (e.g. "Blackacre"),
or to the instrument under which it was acquired (e.g. "the
property I acquired under my father's will"), or to entailed
property generally (e.g. "all entailed property").38
34 As a result of the Trusts of Land and Appointment of Trustees Act 1996, no new entails
may be created after 1996, but existing entails may continue to exist. See Megarry & Wade,
The Law of Real Property (6th ed., 2000) pp. 72-78 for a discussion of the fee tail.
35 Including an owner of a base fee in possession who has power to enlarge it into a fee
simple without the consent of any other person, Law of Property Act 1925, s.176(3): but not
a tenant in tail restrained by statute from barring his entail, or a tenant in tail after possi¬
bility of issue extinct, ibid. s.176(2).
36 If he merely disposes of a lesser interest such as a life interest, then, subject to the life
interest, the entail devolves in the normal way, ibid. ss.l30(4) and 176(1).
37 See the Law of Property Act 1925, s.205(l)(xix).
38 Acheson v. Russell [1951] Ch. 67 ("the object of the section ... must surely be to avoid any
risk of a disentail being effected by inadvertence or involuntarily").

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Chapter 10

THE CONSTRUCTION OF WILLS

I. GENERAL PRINCIPLES OF CONSTRUCTION AND

A. THE LITERAL AND THE INTENTIONAL APPROACHES TO

A problem arises in relation to the construction, or interpretation,2 of a 10-01

It may be that in a particular case there is no dispute because, for

1. The two approaches

10-02 When there is a doubt, or dispute, about the meaning of a word, or

"For what is it that gives rise to all questions of interpretation? Is it not

When a construction problem arises, given that it almost always

construction were set out in a lecture which he gave to the Juridical

2. The confusion between the two approaches

Para 371. "The first duty of a court of construction is to ascertain the

The first paragraph is intentional. The second paragraph is literal. The

3. The advantages of the literal approach

(a) Guards against danger of speculation

(b) Complies with the Wills Act

(c) Words always have the same meaning

10-08 A third advantage of the literal approach is said to be that, whenever a

4. These advantages can be countered

(a) Guesswork and surmise

(b) Compliance with the Wills Act

13 See below, paras 10-34 et seq.

(c) Words always have the same meaning

As to the third supposed advantage of the literal approach—that words 10-11

5. The advantages of the intentional approach

The principal advantage of the intentional approach is that it is much 10-12

(b) Gives effect to deceased's wishes

Secondly, the intentional approach gives maximum effect to the 10-13

B. ADMISSIBILITY OF EXTRINSIC EVIDENCE AND THE TWO

1. Three types of evidence

(a) Linking zvords to subject matter or to objects—evidence as to "reference"17

10-15 First of all, there is evidence of circumstances surrounding the testator at

(b) The testator's use of language—evidence as to "sense"19

10-16 Secondly, there is evidence as to the testator's use of language; for

(c) Statements made by testator—evidence of dispositive intention

10-17 Thirdly, there is evidence of the testator's dispositive intention, i.e.

16 Evidence from outside the will.

2. Which types of evidence should be admissible?

Evidence as to reference, must be, and always has been, admissible— 10

“context" of a will, that meant that he was going to give to a word a

3. The approach taken by judges during the nineteenth century

C. THE HOUSE OF LORDS ABANDONS LITERALISM

marriage, there was only one problem—the meaning of moneys. Earlier

2. The reluctance of Chancery lawyers to abandon literalism—Re

"I decline, therefore, to ask myself: What do the words mean to a

That is pure intentionalism.

D. THE ADMINISTRATION OF JUSTICE ACT 1982, s.21

1. The Law Reform Committee's Nineteenth Report

36 Law Reform Committee's 19th Report, Interpretation of Wills, Cmnd. 5301.

survived) should be abandoned and that the intentional position should

2. Section 21 of the Administration of Justice Act 198240

10-27 The section needs to be set out in its entirety:

"Interpretation of wills—general rules as to evidence

21.—(1) This section applies to a will—

The overall pattern of section 21 is that section 21(l)(a) covers cases

3. What sort of evidence is, and what is not, admissible?

10-28 Evidence of the testator's use of language is always admissible. It is

37 Report para. 49.