In the case of Tish & Ors v Olley & Ors  EWHC 1069 (Ch) the claimants brought a claim under the Inheritance (Provision for Family and Dependants) Act 1975. Although a 1975 Act claim, it helpfully sets out the current judicial approach of tackling ambiguous clauses and how they go about interpreting the testator's intentions. This is because the 1975 claim was dependent upon the interpretation of an ambiguous clause in the will which, depending on how it was interpreted, potentially benefited the claimants. If the clause benefitted the claimants, their claim would fall away. If it did not, the Court would have to consider whether it was necessary or appropriate to make any order for the claimants under the 1975 Act.
The interpretation of this clause therefore came before the court as a preliminary issue.
Raymond Tish died in 2014 after becoming seriously ill with Motor Neurone disease. Mr Tish was a moderately wealthy man. Following his divorce to his third wife Amanda in 2007, he was ordered by the court to pay annual maintenance payments of £18,000 to Amanda and £11,000 a year to their two children, Revan and Arabella, until they attained they age of 18 or completed tertiary education. Additionally he was also ordered to pay all private school fees and to uphold his life insurance policy payments naming the children as beneficiaries.
Mr Tish subsequently remarried, and after becoming ill found he could no longer continue his career as a partner in a successful business. Mr Tish applied to the court to have his maintenance payments reduced to meet his new financial position; however he passed away before a new order could be drafted.
Mr Tish died leaving a will which contained the following clause:
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.”
The question that came before the court was how to interpret that clause.
The claimants, his former wife and their two children, claimed that the 'current Court Order' referred to made reference to the Consent Order in 2007, i.e. that Mr Tish intended to continue both the maintenance payments and school fees at the fixed cost stated in the Order. They therefore sought an order that Mr Tish's estate must continue to pay maintenance and school fees in line with an Ancillary Relief Order created in 2007 as part of a divorce settlement.
Mr Tish's current wife, Louise Tish, argued that this was not the case, the consent order could not be operative as court orders are not enforceable against someone who is deceased. Louise Tish also argued that his numerous attempts to challenge the Order, and his lack of maintenance payments in the past year prior to his death, led to a clear lack of intention to pay the said maintenance.
The court accepted that Mr Tish 's intentions were unclear and this lead to the court having to interpret the clause to establish his true intentions.
When interpreting ambiguous clauses in wills, the court applies the principles of modern contract law. That is that the court must:
- consider the natural and ordinary meaning of the words
- consider the overall purpose of the will
- consider any other provisions of the will
- consider the facts known or assumed by the testator at the time the will was executed and
- apply common sense
The court also applied the ‘armchair principle’ (Allgood v Blake (1872–73) LR 8 Ex 160, 162) in which it was held that "the court is entitled to put itself in the position of the testator, and to consider all material facts and circumstances known to the testator with reference to which he is to be taken to have used the words in the will, and then to declare what is the intention evidenced by the words used with reference to those facts and circumstances which were (or ought to have been) in the mind of the testator when he used those words"
On considering the facts of this case and applying the above principles, the court rejected Louise Tish's arguments and found in favour of the claimants. The court was satisfied that Mr Tish had intended to gift the maintenance payments to his two minor children in his will and therefore he intended to carry forward after his death the maintenance payments and school fees.
While it is reassuring that the court takes such a sensible approach when dealing with ambiguous clauses, this case is a clear reminder that when drafting a will, it is important to ensure each clause is drafted in a clear and unambiguous way so that difficult questions of interpretation can be avoided, and the testators true wishes can be implemented.
Full details of this case can be found here.
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