• ..


To my new professional colleague, Hafatin; Welcome to My Blog!

The armchair principle.

Allgood v Blake (1873) LR 8 Ex 160;

‘The general rule is that, in construing a will, the Court is entitled to put itself in the position of the testator, and to consider all material facts and circumstances known to the testator with reference to which he is to be taken to have used the words in the will, and then to declare what is the intention evidenced by the words used with reference to those facts and circumstances which were (or ought to have been) in the mind of the testator when he used those words.’

Extrinsic evidence is admissible to show which beneficiary the testator designated by a particular description up to the time of his death.

1. Charter v Charter (1874) LR 7 HL 364

Facts of the case

The testator had three sons; Forster Charter (who had died before the will was made), William Forster Charter and Charles Charter (both of whom survived the testator). William became a butcher and settled 100 miles away, seeing his father only occasionally. Charles, however, lived with the testator and assisted him in managing the farm.

Held

From the facts, such evidence was admissible to show which son was intended to take the farm (Charles) since the court had a right to ascertain all the facts known to the testator to determine whether there existed any person or thing to which the description in the will could be applied with sufficient certainty. Thus evidence of his relationship with any claimants was certainly relevant.

2. Parsons v Parsons (1971) 1 Ves Jun 266; 30 ER 335

Facts of the case

The testator left property to his brother Edward Parsons for life. When he made the will he had only one brother alive, Samuel Parsons.

Held

Evidence was admitted that the testator was in the habit of calling Samuel by the name of ‘Edward’ or ‘Ned’. Hence Samuel entitled to the gift so bequest.

3. Thorn v Dickens [1906] WN 54

Held in facts of the case

Extrinsic evidence was admitted to show that when the testator wrote ‘all for mother’ he intended his wife to take the gift since he habitually referred to his wife as ‘mother’.

Similarly, extrinsic evidence is admissible to show which property the testator designated by a particular description up to the time of his death.

4. Castle v Fox (1871) LR 11 Eq 542

Facts of the case

The testator devised his mansion and estate called ‘Cleeve Court’ on trust for his wife for life. The issue was whether certain lain purchased by him after making the will, adjoining the ‘Cleeve Court’ estate, were part of the devise.

Held

Evidence was admitted as to which property he regarded as answering the description ‘Cleeve Court’ before his death. As the result the after-acquired lands passed under the devise.

5. Ricketts v Turquand (1848) 1 HLC 472

Facts of the case

The testator devised ‘all my estate in Shropshire, called Ashford Hall’. The testator owned a mansion-house called Ashford Hall, adjacent lands and other realty in Shropshire.

Held

Evidence was admitted which showed that the testator regarded all his realty in Shropshire as the Ashford Hall estate.

Note [Suggested hints]

In analogy, say for example the testator wrote a will which to be read as follows; ‘My house in Shah Alam to my daughter’. In fact, he had no house in Shah Alam up to the time of his demise but he has a bungalow in Klang. The issue is whether the daughter may claim from the executor of his father’s estate to dispose the bungalow in Klang to her? If the evidence was admitted which showed that the bungalow is situated at Alam Mega, an area between the south of Shah Alam and Klang in which the testator during his life time used to refer the aforementioned bungalow as ‘house in Shah Alam’ then the house may so be disposed to satisfy the daughter’s claim. However, such principle of rule of construction may face challenges if say for example the bungalow in Klang is also subject to the other provision of the will. Then, the latter shall prevails and the daughter will get nothing form the will

. If you find it useful and/or there are some mistakes (be it in theory, in practice or grammatically) please leave comments as a small token of your appreciation for my work done. Your feedback is so important for the continuation of my carrier as a new-generation-blogger.