This case involved an application by the executor of the estate of the late Nicholas Turquand-Young (the "testator") seeking a declaration from the Royal Court as to the correct interpretation of his will (the "Will").
This judgment is particularly interesting as it is the first time that the Royal Court of Jersey has been required to consider the issue of bequests being made to the same charity but under two of its former names, where it was not clear whether the testator intended the same charity to benefit twice.
Background
The testator died on 5 September 2010, domiciled in England and Wales. A grant of probate was issued on 7 July 2011 out of the Royal Court to the Representor as one of the executors of the testator's estate.
After various pecuniary and specific legacies, the testator left the residue of his estate, being in excess of £9 million and almost entirely comprising Jersey movable property, to be split equally between eight named charities, two of which being 'National Society for Cancer Relief' and 'Macmillan Cancer Relief'. In fact, these were two former names of the same charity, which is now known as 'Macmillan Cancer Support' ("Macmillan").
This raised the question of whether the estate should be divided into eight equal shares, as the testator had specified, with Macmillan receiving two of the one-eighth shares, or whether it should be divided equally between the seven charities which in fact existed.
Carey Olsen, working with Paul Hewitt of Withers LLP and Mr Richard Wilson, English Counsel of 3 Stone Buildings, acted for Macmillan.
Issues and principles
It was agreed that the Will should be interpreted in accordance with English law, as the testator was domiciled in England and Wales at the time when the Will was made.
The Court was then asked to consider the applicable principles of construction under English law. Opinions were provided by two English Chancery counsel. Whilst they agreed on the applicable principles of construction, they disagreed on their application to the facts of this case.
The leading authority remains the English case of Perrin v Morgan [1943] AC 399, in which Lord Simon LC stated that 'A court exercising its power of construction is confined to the provisions of the will, and the available evidence of intention. It will not indulge in mere speculation as to what the testator would have provided for had he thought about it'. Lord Simon LC went on to note that such speculation comes in two forms: the court cannot rewrite a will, and it may not guess what the testator's intentions may have been.
Discussion
One possible construction is that, where a testator gives two legacies to the same person in the same amount, they are presumed to be substitutional and merely repetitious so that the legatee takes only one gift and not both. Mr O'Sullivan of Counsel, instructed by the Representor, concluded that this presumption should apply by analogy in the present case, and concluded that, in his view, the testator would not have intended to confer two gifts of a one-eighth share on the same charity.
The Royal Court disagreed, stating that 'it is by no means clear that a testator would not wish to benefit a charity with a double share where he is under the mistaken impression that he is dealing with two different charities'.
The Royal Court therefore preferred the construction contended for by Mr Richard Wilson of Counsel, instructed by Macmillan. In summary, the Court's reasons were as follows.
- 'A change of name does not affect the validity of a gift to charity'. A bequest made to a charity under its former name is still valid.
- The fact that the testator referred to two different names for the same charity 'does not of itself make the two bequests meaningless'.
- The Royal Court inferred that the testator did not know that the two charities which he had named were the same charity, but said that 'it was simply not possible to know what he would have done had he known of this error. It is clear from the authorities that the Court must not speculate as to what a testator would have done had he not been under a misapprehension'.
- Where a testator makes a charitable gift, he intends that the relevant part of his estate should be applied towards the charitable works carried out by the chosen charity. In this case, the testator's intention was that two-eighths of his estate would be used to fund the work of charities engaged in providing relief from cancer. The Court stated that 'The fact that two-eighths of the estate will fund relief from cancer by the work of one charity rather than two is not contrary to the testator's intention. On the contrary, it would appear consistent with it. As against that, to divide the estate equally between seven charities would result in only one-seventh of the estate being applied for cancer relief rather than the two-eighths that the deceased plainly intended'.
The Royal Court reached its conclusion without recourse to any extrinsic evidence, however it briefly considered the extrinsic evidence available in accordance with Section 21 of the Administration of Justice Act 1982. The Court noted that the only provision of section 21 which could conceivably be relevant in this case is that set out in sub-section (c), which provides that extrinsic evidence, including evidence of the testator's intention, may be admitted to assist in the interpretation of a will 'in so far as evidence, other than evidence of the testator's intention, shows that the language used in any part of it is ambiguous in the light of surrounding circumstances'.
Although the Court did not consider there to be any ambiguity falling within section 21(c), it looked to the testator's previous will drafted in 2006. The residuary bequests were in similar terms, save that addresses were included for the eight named charities. Different addresses were provided for 'National Society for Cancer Relief' and 'Macmillan Cancer Relief', which confirmed the Court's inference that the testator believed them to be two different charities. Furthermore, a manuscript note prepared by the testator for the Advocate preparing the Will also confirmed this belief.
Judgment
The Court held that, properly construed, the Will provided that the residuary estate should be divided into eight equal parts, two of which should pass to Macmillan, and ordered that the costs of the parties should be paid out of the residuary estate.
Comment
This is the first case of its kind to be heard in Jersey and it gives guidance as to the principles that the Royal Court will apply in construing a will, and as to how the Royal Court might interpret a testator's will, where more than one bequest has been made to the same charity under more than one of its former names. As there is no existing English authority on all fours and the Royal Court had to apply English law, this case is of wider importance. It is thought that the Royal Court of Guernsey would approach the question of construction of a Will in the same way.
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