Interpreting an ambiguous Will clause and intentions of the testator (Tish and others v Olley and others)

Tish and others v Olley and others [2018] EWHC 1069 (Ch), [2018] All ER (D) 47 (May)

What are the practical implications of this case?

Hopefully, we shall not be the creators of new case law in this area, having taken full instructions and translated these with clear and precise drafting.

However, we do encounter homemade wills or wills drafted in last minute or stressful testator/testatrix induced circumstances, when such ambiguities can be more forgivable. In these latter cases, it is interesting for practitioners to see the current judicial approach to these interpretation quandaries.

What was the background?

Raymond Tish and his third wife divorced in 2007. The ancillary relief order on divorce specified he would pay Amanda £18,000 per annum, and to each of the children, then aged six and nine, £11,000 every year until they reached 18, or completed tertiary education (if later). The money was to be adjusted in line with inflation. Furthermore, he would cover their private school fees and reasonable extras, and he also committed to assign his life insurance to the benefit of the three of them.

Mr Tish subsequently re-married. In 2012 he was diagnosed with motor neuron disease and his condition deteriorated progressively over the next two years. Despite being divorced from their mother and remarried, he spent a lot of time with his two children in his final years.

In late 2013/early 2014 he made a will. It is not apparent from the judgment if a solicitor was involved in the drafting, but a financial adviser clearly was. Mr Tish’s condition had deteriorated to the point where he could no longer work. Without a salary, he claimed he could no longer afford his maintenance obligations, and he ceased to pay them at that time. He also applied to court to vary the order in May 2014, but the proceedings were left incomplete because he died on 10 August 2014.

The question before the Chancery Court was how to interpret a clause in his will. The clauses stated:

Maintenance: I give to my daughter Arabella Camille Tish and my son Revan Elliot Tish as shall survive me free of all taxes Maintenance to be paid in relation to the current court order as may be amended in time, therefore if the maintenance is reduced then the reduced level can be accounted for.

What did the court decide?

The modern position when interpreting a will is essentially the same as when interpreting a contract. One seeks the intention of the testator by identifying the meaning of the relevant words in light of:

• the natural and ordinary meaning of those words
• the overall purpose of the will
• any other provisions of the will
• the facts known or assumed by the testator at the time the will was executed and
• common sense

but ignoring subjective evidence of the testator’s intentions.

The ‘armchair principle’ (Allgood v Blake (1872–73) LR 8 Ex 160, 162) by which the court is entitled to put itself in the position of the testator, and to declare what is the intention evidenced by those words with reference to the facts or circumstances which were (or ought to have been) in the mind of the testator when he used those words, was also considered.

In light of the above, Mr Tish was held to have appreciated that, firstly, his maintenance obligations to his children would not survive his death, but he chose to voluntarily complete these regardless, and secondly, the reference to ‘the current court order’ was a reference to the 2007 order still in force till his death.

Accordingly, the clause was found to gift annuities to the children on the same terms as the 2007 order.

Interviewed by Nicola Laver and first published by LexisNexis on 6 June 2018.

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