We all know that the Isle of Man and Channel Islands are not part of the UK. However, as Advocate Chris Brooks explains, in a recent case the English Court of Appeal found a way to read a Will gifting "UK assets" so that it included assets in the Channel Islands in the gift. Although the case concerns Jersey, the Isle of Man would be in the same position because it is also outside the UK. Here Chris examines the rationale and implications.

Mr Rossiter was domiciled in Russia but he made an English Will with an English Solicitor.  He mentioned to the lawyer that he was intending to deal both with a property in Cheshire and a bank account in Jersey.  Unfortunately, this was not reflected in the drafting of the Will which referred to "UK assets". 

After his death, a dispute arose over whether the Will was meant to include the bank account in Jersey. 

Both sides agreed the United Kingdom means Great Britain and Northern Ireland but does not include the Channel Islands. 

So, if the words in the Will were interpreted literally, the Will would not dispose of the Jersey bank account.  No Jersey Will existed so Mr Rossiter would have no Will governing his Jersey assets.  Where a person leaves no Will then intestacy laws apply.  These generally provide for an arbitrary division among close family members but take no account of the deceased's intentions. 

On the other hand, those persons who would have benefitted under the Will argued that the deceased had meant to include the Jersey bank account within the Will.

Luckily for them, the law agrees that "the meaning of words cannot be ascertained divorced from their context", as Lord Justice Steyn put it in a 1995 case.  This has been the case for a long time.  An early example of this was an 1887 case concerning a policy of insurance which paid out on "any bodily injury caused by any external accident, happening within the United Kingdom, or on the continent of Europe."  To his misfortune, the policyholder was accidentally drowned in Jersey. Technically, he was therefore neither in the UK nor on the continent of Europe. However, the Court held that Jersey was intended to be within the meaning of the words of the policy and his estate should be paid out.

Thankfully, the Courts have power to consider the surrounding circumstances of a Will, including evidence as to the testator's real intentions, where wording in a Will is ambiguous.  Where a Will is expressed badly and fails to carry out the testator's intentions because of a clerical error or a failure to understand instructions, it may order that the Will should be rectified to reflect the testator's true intentions.  This power was even used in one case to rectify a mistake that occurred when husband and wife signed each other's Wills by mistake at their solicitors.  The Supreme Court accepted that this was a clerical error.

Thankfully for Mr Rossiter's intended beneficiaries of the bank account in Jersey, the Court agreed that his Will meant to include Jersey assets within the definition of UK assets and they got their inheritance.

They would, no doubt, have preferred to do so without a considerable legal fight and whilst errors might ultimately be rectified, the best advice is to have your Will professionally drafted and be absolutely sure there is no confusion between you and your lawyer as to what specific words mean.  Care and precision are needed in the drafting and execution of Wills and it is worth spending time to ensure that your affairs are in order.

Advocate Chris Brooks is Head of Dispute Resolution at Simcocks Advocates.

Partington v Rossiter [2022] Ch. 43

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