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	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Esson v Esson & Ors [2009] EWHC 3045 (Ch) (24 November 2009) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2009/3045.html Cite as: [2010] WTLR 187, [2009] EWHC 3045 (Ch)

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IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION (PROBATE)

		Royal Courts of Justice Strand, London, WC2A 2LL
		24/11/2009

Mr Kevin Prosser QC :

Introduction

1. Mrs Dorothy Clements ("Mrs Clements") died on 14^th July 2006. She was survived by the three children of her first marriage, and by six grandchildren. She was also survived by three stepchildren, the children of her second husband Norman Clements, who died on 3rd July 2005.
2. Mrs Clements' last will ("the Will") dated 19^lh November 1996 gave her interest in the matrimonial home to her three children, and gave her residuary estate to Norman if he survived her for 28 days (as mentioned above, he predeceased her) failing which to the three children and three stepchildren in equal shares.
3. It appears that Mrs Clements and her husband executed "mirror" wills. That is, Norman's last will, also dated 19^th November 1996, gave his interest in the matrimonial home to his three children (Mrs Clements' stepchildren), and gave his residuary estate to Mrs Clements if she survived him for 28 days (which she did) failing which to the three children and stepchildren in equal shares.
4. In 2002, Mrs Clements' mother died. She left her estate to her two daughters, Mrs Clements and her sister Mrs Margaret Peart.
5. After her mother's death, Mrs Clements executed an undated codicil to the Will ("the Codicil"). This was written by Mrs Clements herself and provided:

"My Portman Building Society Account No. 72013068 is the residue of monies left to me by my mother Mrs Edith Firman. My husband Norman John Clements is in full agreement that should I predecease him, all monies in this account should be divided equally between my grandchildren [whom she named]."

6. A question has arisen concerning the interpretation of the Codicil: are the words "should I predecease him" to be interpreted as a condition of the gift to the grandchildren? If so, the condition was not satisfied, because Mrs Clements did not predecease her husband, and so the gift to the grandchildren failed, and the building society account money falls into residue in favour of the children and stepchildren.
7. The Claimant, as one of the executors, accepts that on a strictly literal interpretation of the Codicil, and in particular of the words "should I predecease him", the gift to the grandchildren is conditional upon Mrs Clements predeceasing her husband. However his primary contention is that in context, and in the light of the surrounding circumstances, the words "should I predecease him" should be interpreted as meaning "even if I should predecease him", so that the sift to the grandchildren was to take effect whether or not Mrs Clements predeceased her husband. The Claimant contends that this is the correct interpretation of the Codicil without reference to any extrinsic evidence of Mrs Clements' intention, but he also contends that there is extrinsic evidence, admissible under section 21 of the Administration of Justice Act 1982 ("the 1982 Act"), which supports that interpretation.
8. Alternatively, if that is not the correct interpretation of the Codicil, the Claimant contends that the extrinsic evidence shows that the Codicil fails to carry out Mrs Clements' intention in consequence of a clerical error, so that the court should rectify the Codicil so as to give effect to her intention pursuant to section 20 of the 1982 Act, by deleting the words "should I predecease him" or possibly the word "that". Failing that, he contends that the Codicil should be admitted to probate with the omission of those words, on the ground that to that extent Mrs Clements lacked the requisite knowledge and approval of the contents of the Codicil.
9. There are twelve Defendants. None of them was represented at the trial. The Third, Fourth and Fifth Defendants, Mrs Clements' stepchildren, do not admit the Claimant's claim but neither do they advance a positive case. The other Defendants admit the claim.
10. Evidence by witness statement was given by two of Mrs Clements' children, by two of her stepchildren, and by her sister. None of the witnesses was cross-examined.

Interpretation of the Codicil without reference to extrinsic evidence of intention

11. I have approached the task of interpreting the Codicil in the following way. First, I must ascertain Mrs Clements' intention as expressed in the Codicil when read as a whole in the light of the surrounding circumstances including the Will. Secondly, it may be presumed that she intended the words and phrases used in the Codicil to have their ordinary and usual meaning; but I should not give them that meaning if to do so would fail to give effect to her intention, ascertained as mentioned above. Thirdly, I bear in mind that, although the Codicil is written in a legalistic style (see the references to "residue" and "monies" and the critical phrase "should I predecease him") Mrs Clements wrote it herself. She was an intelligent and educated woman but she was not a lawyer. Fourthly, although the Codicil is very short, it consists mainly of an explanation for, and a recital of her husband's agreement to, the gift. Finally, if one reads the second sentence of the Codicil grammatically, it would appear to be no more than a recital of her husband's agreement to a gift, but it is obvious that Mrs Clements also intended to set out the terms of the gift itself, so that she clearly did not intend the second sentence to be given a strictly grammatical construction.
12. I now turn to consider the terms of the Codicil. First, it does not say what was to happen to the building society account money if Mrs Clements did not predecease her husband. If the gift to the grandchildren was intended to be conditional, one would expect the Codicil to say what was to happen if the condition was not satisfied, but it does not do so.
13. My next point concerns the first sentence of the Codicil, which states that the money in the building society account had been left to Mrs Clements by her mother. That is, it was not part of the joint assets of her marriage to Norman, but had come from her side of the family, and was being kept in a separate account. Mrs Clements clearly considered it important, possibly because of the "mirror" wills, to explain why she was giving the money to members of her side of the family, namely her grandchildren. In the light of this explanation, it would be surprising if Mrs Clements intended the money to pass in certain events with the rest of her residuary estate to (amongst others) her stepchildren who were not members of her side of her family.
14. My next point is that it would be even more surprising if Mrs Clements intended to make the gift to her grandchildren conditional upon the occurrence of a chance event, namely her happening to predecease her husband. Of course Mrs Clements was entitled to be capricious, but it is improbable that that was her true intention.
15. It might be argued that when the Codicil is read in the light of the Will, Mrs Clements was not being capricious at all. That is, if she predeceased her husband then under the Will the money would pass to him. Thus, he was in full agreement with the money going to her grandchildren instead of to him if she predeceased him. But if she did not predecease him, then under the Will the money would pass to, amongst others, his children, Mrs Clements' stepchildren. He was not in full agreement with the money going to her grandchildren instead of to the stepchildren if she did not predecease him. In other words, Mrs Clements intended the gift to be conditional so that her grandchildren would take the money in place of her husband but not in place of the stepchildren.
16. I am not persuaded by this argument, for two reasons. First, even if the gift was conditional, Mrs Clements' grandchildren might still take the money in place of the stepchildren. This is because the gift of residue under the Will in favour of her husband was conditional upon Mrs Clements predeceasing him by at least 28 days. Thus, if she predeceased him, but by less than 28 days, the grandchildren would take the money under the Codicil in place of the stepchildren. Secondly, and more importantly, this argument fails to deal with the point that it would still be capricious for Mrs Clements to give the money to her grandchildren if she predeceased her husband, but to give it (or half of it) to her children if she did not.
17. Having regard to these points, although Mrs Clements may have intended the words "should I predecease him" to be a condition of the gift to the grandchildren, I am not persuaded that this was indeed her intention.
18. I think that Mrs Clements probably intended that those words should have a different meaning, indeed that they should perform a different function, altogether. As I have mentioned above, the second sentence of the Codicil recites the agreement of Mrs Clements' husband to the gift and also sets out the terms of the gift itself. The difficulty of interpretation has arisen, in my view, because she has used the one sentence to perform both functions. I think that she intended the words "should I predecease him" to form part of the former function, of reciting her husband's agreement to the gift. That is, she was reciting her husband's agreement that the money should not go to him if she should predecease him, but should go to her grandchildren in accordance with the (unconditional) gift.
19. Thus, even in the absence of extrinsic evidence admitted under the 1982 Act, I would interpret the Codicil as giving the money to the grandchildren whether or not Mrs Clements predeceased her husband.
20. However, the language used in the Codicil, and in particular "should I predecease him", is ambiguous on the face of it. It follows that extrinsic evidence of Mrs Clements' intention is admissible under section 21(l)(b) of the 1982 Act to assist in the interpretation of the Codicil.

Interpretation of the Codicil in the light of extrinsic evidence of intention

21. First, there is the evidence of Mrs Peart, the sister of Mrs Clements. She witnessed the execution of the Codicil, and at that time (as well as a few weeks before) Mrs Clements told her that she wanted the money to go to her grandchildren.
22. Subsequently, including after her husband's death, Mrs Clements told Mrs Peart that she would not spend the money because it was for her grandchildren.
23. Although Mrs Peart was not cross-examined, I accept her evidence. Her side of the family (that is her nephews' children) would benefit if her evidence is accepted, but she herself does not stand to benefit in any way.
24. It is important direct evidence that at the time of execution of the Codicil, Mrs Clements intended to give the money unconditionally to the grandchildren. It is also indirect evidence of that intention, in that Mrs Clements believed, even after her husband's death, that this was indeed the effect of the Codicil.
25. Secondly, there is the evidence of the Claimant, Frank Esson. He said that on more than one occasion in the year or so before the death of her husband, Mrs Clements told the Claimant that she wanted the money which she had inherited from her mother to go to her grandchildren and that she and her husband had agreed a codicil to that effect.
26. In addition, after the death of her husband Mrs Clements told the Claimant once more that the money was going to the grandchildren. He too was not cross- examined, but I accept his evidence. His children would benefit (by more than he would lose) if his evidence were accepted, but his evidence is consistent with the evidence of Barrie Esson (see below) and Mrs Peart.
27. I give less weight to his evidence than that of Mrs Peart because his conversations with Mrs Clements did not take place at or around the time of execution of the Codicil, but his evidence is wholly consistent with hers.
28. Thirdly, there is the evidence of Barrie Esson. He said that after her husband's death Mrs Clements told Barrie about the money which she had inherited from her mother, and said that it was for the grandchildren.
29. Again, he was not cross-examined, but again I accept his evidence. His side of the family (his brothers' children) would benefit if his evidence is accepted, but he has no children of his own who would benefit, and as one of Mrs Clements' children, he would actually lose out.
30. However, I do not attach much weight to this evidence because the conversation was some years after the execution of the Codicil.
31. Finally, there are two letters written by Mrs Clements after her husband's death, dated 20^th February 2006 and 18^th June 2006, stating that the money was to go to the grandchildren. Again, I do not attach much weight to the letters as evidence of Mrs Clements' intention, because they were written some years after the execution of the Codicil.
32. This evidence taken as a whole indicates that Mrs Clements intended the building society account money to go unconditionally to her grandchildren, and therefore supports my interpretation of the Codicil that she did not intend the gift to be conditional on her predeceasing her husband.
33. Although the Third, Fourth and Fifth Defendants have given evidence by witness statement, putting the Claimant to proof and doubting the evidence mentioned above, there is no evidence to the contrary.

Conclusion

34. For these reasons I am satisfied that Mrs Clements did not intend the gift to the grandchildren to be conditional, and in particular did not intend the words "should I predecease him" to be a condition of the gift to the grandchildren.
35. I therefore uphold the Claimant's primary contention in substance, although not for all the reasons advanced.
36. In the light of this conclusion, it is not necessary for me to go on to consider the Claimant's alternative contentions, and I shall not do so.
37. I understand that there will be argument on the question of costs.