In this case, the judge applied the first limb of the rules of construction as set out by Lord Neuberger in the Supreme Court case of Marley v Rawlings but stated that if this interpretation was incorrect, the same result would have been achieved using the two other limbs of the test set out in the Supreme Court case.
The testator had left his property to his wife to reside in for the rest of her life and then, it seemed, to his son. The residue of the estate was left equally to his son and his daughter. The will set out that the son would inherit the property ‘[w]hen the trust period ends’. The ‘trust period’ was defined as the period between the testator’s death and his wife’s death or remarriage. The testator’s wife died before him, leading the daughter to argue that the property fell into residue as the trust period did not arise and could therefore not end. If this was the case, the son and daughter would receive half of the property each.
In the first limb of the test, Marley v Rawlings set out the court must interpret the words in the will in light of the following factors:
1. The natural and ordinary meaning of the words;
2. The overall purpose of the will;
3. Any other provisions of the will;
4. The facts known or assumed by the parties at the time the will was executed; and
5. Common sense.
The judge construed that the ‘trust period’ started on the first of the testator’s or testator’s wife’s death and ended on the second of the testator’s or testator’s wife’s death, rather than it having to start on the testator’s death. As the testator’s wife had died first, the trust period started on her death and ended on the testator’s death. If the daughter’s interpretation had been correct, it would have meant that the will was providing for two different scenarios depending on the order of the deaths of the testator and his wife. As they were both in ill health when the will was drafted, it would not have been possible for them to predict who would die first and the judge stated that ‘it would be almost capricious to make the operation of a provision leaving [the property] to the claimant dependent on the chance of which parent succumbed to existing illness first.’
In case his interpretation was incorrect, the judge also considered the two further limbs of the test in Marley v Rawlings and stated that:
1. the same result would have been achieved had he admitted evidence of the testator’s intention under section 21 of the Administration of Justice Act 1982; and
2. if both of the above avenues were incorrect, he would have ordered rectification under section 20 of the Administration of Justice Act 1982 s.21 on the basis that the definition of ‘trust period’ was a ‘clerical error’, taking the wide meaning of ‘clerical error’ set out in Marley v Rawlings.