What's The Point? ' Some Questions In The Interpretation Of Wills

• Published date: 09 July 2021
• Subject Matter: Corporate/Commercial Law, Litigation, Mediation & Arbitration, Family and Matrimonial, Charities & Non-Profits , Contracts and Commercial Law, Trials & Appeals & Compensation, Trusts, Wills/ Intestacy/ Estate Planning
• Law Firm: Wilberforce Chambers
• Author: Daniel Petrides

In Wood v Capita [2017] UKSC 24, Lord Hodge boldly declared that "the recent history of the common law on contractual interpretation is one of continuity rather than change".¹ At a high level of principle this is true: the 'modern' approach formulated by Lord Hoffmann in his landmark judgment in Investors Compensation Scheme Ltd v West Bromwich [1996] UKHL 28; [1998] 1 W.L.R. 896 remains an authoritative summary of the exercise in which the courts are engaged when construing written instruments.² But the judicial implementation of that exercise in the intervening period has revealed significant differences in judicial taste, with the cases in the years immediately following ICS appearing to favour contextualism and purposive interpretation, while more recent decisions following Arnold v Britton [2015] UKSC 36 have signalled an apparent (re)turn to textualism, and a greater reluctance on the part of the courts to interfere with the bargain which the parties appear (objectively) to have concluded.

Some types of instrument have been partially sheltered from this storm by unique considerations arising from their purpose or status.³ Wills are not among them. In Marley v Rawlings [2014] UKSC 2 Lord Neuberger - building on his own earlier judgment in RSPCA v Sharp [2010] EWCA Civ 1474 - held that, subject to the intervention of statute, the approach to construing wills should be the same as that adopted by the courts when interpreting commercial contracts. But given the apparent flux in the prevailing approach to interpreting commercial contracts, can this really be the case in practice?

A will, being a unilateral instrument, does not represent a compromise between competing interests; its sole purpose is to express the testamentary wishes of a testator. Accordingly, it is suggested that purposive construction should have a greater role to play in the interpretation of wills than it does in the prevailing approach to interpreting bilateral contracts, where the language used is the sole record of the transitory confluence of competing intentions at the moment when the contract is executed. While certainty is of paramount importance in preventing satellite disputes which may diminish the deceased's estate and create tension between potential beneficiaries, it is surely a corollary of English law's preference for testamentary freedom that the courts should not adopt an unduly technical approach to construction which may frustrate the intentions of the testator...