Context Is Everything

In a case last year the Court of Appeal needed to decide whether the statement “I confirm that this Will only has effect in relation to my UK assets” in a will made by a testator domiciled in Russia included reference to assets he owned in Jersey.  The will draftsman had advised the testator “if you own assets outside the UK, you need a separate will in each of those countries and you should consult lawyers in that/those other countries to do that”.

The judgement recorded that Jersey is one of the last vestiges of the ancient Duchy of Normandy.  Although it has its own legislature, its own courts, and its own legal system the monarch continues to exercise jurisdiction over Jersey as if she were the Duke of Normandy.  It is not however an independent state in international law.  Under the Interpretation Act 1978 it is not for the purposes of domestic legislation part of the United Kingdom which defines ‘the United Kingdom’ as “Great Britain and Northern Ireland”, but Jersey is one of the British Islands.

Having looked at certain dictionary definitions, the court quoting from a previous case said “Dictionaries never solve problems of construction.   The meaning of words cannot be ascertained divorced from their context.”

Previous decisions in different contexts had decided, as the case may be, that Jersey in some cases was but in other cases was not part of the United Kingdom.

Quoting from the leading Supreme Court Decision in Marley -v- Rawlings, the court stated, relying upon principles historically used in the interpretation of contracts, that “the court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words

(a) in the light of

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

(b) ignoring subjective evidence of the party’s intentions….”

The problem was that if Jersey was found not to form part of the UK, then in relation to that part of his estate the Deceased would have unintentionally created an intestacy.  Quoting from an earlier case, the Court said: “There is one rule of construction, which to my mind is a golden rule, viz., that when a testator has executed a will in solemn form you must assume that he did not intend to make it a solemn farce, – that he did not intend to die intestate when he has gone through the form of making a will”.

There is at least one difference between wills and contracts namely that under Section 21 of the Administration of Justice Act 1982 if any part of a Will is meaningless or the language used in any part of it is found to be ambiguous then extrinsic evidence, including evidence of the testator’s intentions, may be admitted to assist in its interpretation.

Having found that evidence of the testator’s intentions was admissible the court decided it was unlikely that he wanted to leave a partial intestacy so he must have intended when referring to ‘the UK’ in the will to have included Jersey.

As one eminent law lord once said, “no one has ever made an acontextual statement”.

Get tailored advice for dealing with contentious probate

The information given here is intended for general information purposes only and should not be taken as legal advice.

For specific guidance relevant to your situation, please contact our contentious probate specialist Paul Grimwood by calling 01895 207859 or emailing paul.grimwood@ibblaw.co.uk.