The Supreme Court – FS Cairo (Nile Plaza) LLC v Lady Christine Brownlie
In the estate of Steven James Andrew Huntley (Deceased) subnom (1) Michael Brooke (2) Arthur Jennings (3) Ian Campbell v Louise Purton & 5 Ors  EWHC 547 (Ch), the High Court confirmed that the correct approach to the interpretation of a frustrated Will was the same as that for a contract: the aim was to identify the testator's intention.
The testator, Steven Huntley (“H”), had two young children with his partner, Louise Purton (“P”), and three adult children with his former partner. The principal component of his estate was a 90 per cent shareholding in a company, with the balance being real property, vintage vehicles and cash.
In 2009, H sought legal advice on Wills and inheritance tax planning. He expressed a wish to ensure that his estate would be divided equally between P and his five children on his death, but was concerned that his children would be unable to manage a large inheritance. Following discussions, it was agreed that it would be appropriate to arrange a discretionary trust ensuring that any business assets that H had would pass to the trustees to manage so that they could decide when and how the beneficiaries would receive their inheritance. This was recorded in a draft version of the Will.
The final form of the Will was, however, prepared using an inappropriate precedent form which, given the likely comparatively small size of H's estate apart from the business assets, precluded the inclusion of any business assets in the trust, thereby frustrating its purpose. H died in a motorcycle accident in 2011 and the executors and trustees of his estate (“T”) were granted probate.
T applied for the court to correct the Will by construction and/or rectification. They sought the correction of that part of the Will dealing with the discretionary trust so as to reflect H's clear intentions. The beneficiaries broadly supported the revision sought.
T’s application was granted.
The High Court confirmed that the correct approach to the interpretation of a Will was the same as that for a contract i.e. to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context.
Sitting metaphorically in H's place and with his knowledge and belief as to the present and future nature and value of his various assets, it was apparent that a literal reading of the Will could not plausibly represent his intentions. This approach is confirmed by section 21 of the Administration of Justice Act 1982 (“the Act”), which requires extrinsic evidence of intention to be shown. Such evidence was both available and strong, and undoubtedly established the intention in the terms clearly recorded in the draft Will.
This case follows hot on the heels of the decision in Marley v Rawlings, in which the Supreme Court rectified a Will in circumstances where a married couple accidentally signed each other’s Wills.
Both decisions demonstrate the court’s willingness to look beyond the literal content of a Will and consider all available evidence in order to ensure that the testator’s intentions are followed; as has been the case in respect of commercial contracts for many years
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