Implied Revocation Of Deeds Of Appointment? Equiom v Velarde

• Published date: 02 August 2021
• Subject Matter: Litigation, Mediation & Arbitration, Family and Matrimonial, Trials & Appeals & Compensation, Wills/ Intestacy/ Estate Planning
• Law Firm: Wilberforce Chambers
• Author: Elizabeth Houghton

In the recent case of Equiom (Isle of Man) Ltd v Velarde [2021] EWHC 1528 (Ch) it was held that a wide power of appointment contained in a will had the effect of impliedly revoking previous deeds of appointment and making a new appointment. This case concerns the will ("the Will") of a Mrs Patricia Moores, who died in 2017, and a settlement created many years before by her father ("the Settlement"). During her lifetime Mrs Moores had a special power of appointment over property in a sub-fund of the Settlement. The power could be exercised by deeds revocable or irrevocable, or by will or codicil.

The special power of appointment over the sub-fund had been exercised twice by Mrs Moores during her lifetime. First, in 1981, Mrs Moores, appointed (with effect from her death) the sub-fund between her 3 children (Christian, Rebecca and Matthew). That appointment was expressed to be revocable by deed, will or codicil ("the 1981 Appointment")

Secondly, in 1997, Mrs Moores revoked the 1981 Appointment and instead appointed (from and after her death) the sub-fund on trust to Christian and Rebecca, cutting out Matthew ("the 1997 Appointment").

Mrs Moores' Will was made in 2007. Clause 7 of the Will provided (emphasis from judgment):

"I LEAVE DEVISE BEQUEATH AND APPOINT the whole of my real estate and the rest residue and remainder of my personal estate wheresoever situate and of whatsoever kind of or to which I shall be seised possessed or entitled at the PRIVATE CLIENT EBRIEFING date of my death or over which I shall have any power of testamentary disposition whatsoever ... unto my children [...]."

The question for the Court was whether or not clause 7 of the Will revoked the 1997 Appointment. If it did, then the sub-fund would be shared equally between the siblings; if not, then it would be shared only between Christian and Rebecca.

The Claimant trustees took a neutral stance. Christian argue that clause 7 did not revoke the previous 1997 Appointment. Matthew argued that it did. Rebecca did not participate in the proceedings but supported Matthew's position. The Court repeated the now well-established principles governing the interpretation of wills, and set out how those principles differ from those applicable to commercial contracts.

The Master found (para 23) that, absent the previous Appointments, clause 7 would have had the consequence of appointing the sub-fund equally between Christian, Rebecca and Matthew. The position was complicated because of those two...