Construction of wills

General & Subsidiary Rules of Contraction

 The first cardinal rule of construction of wills is that the wishes & intention of the testator as expressed in
the words used in the will must be given effect. {Abiba Ali v Alhaji Ali (1939) 5 WACA 94}

 Generally, no extrinsic evidence is admissible to contradict the ordinary meaning of the words used in the
will {Grey v Pearson (1857) 10 ER 1216 – Per Lord Wensley-dale
“In construing wills, & indeed statutes, & all written instruments, the grammatical & ordinary sense of the words is to be
adhered to, unless that would lead to some absurdity, or some repugnancy or inconsistency in the rest of the instrument, in
which case the grammatical & ordinary sense of the words may be modified, so as to avoid that absurdity & inconsistency but
no further”

 Words used in a will must be given their ordinary meaning. If a word has more than one ordinary
meaning, the meaning which is more appropriate must be applied unless doing so will result in
inconsistency or absurdity

 Note: that courts are unwilling to apply rules of construction & there4 are resorted as last resort.- which
are resorted to when a court is in difficulty trying to deduce the true intention of the testator.
 It is to be noted that the court’s role is limited to the interpretation of the words contained in the will & not
to make a will for the testator. Hence, a court in interpreting a will will not insert words or that which was
not in the will.

 Construe wills as a whole: In determining the intention of the testator from the will itself, it is required
that the will must be read as a whole which could lead to the correct appreciation of the true intention of
the testator { Crumpe b Crumpe [1900] A.C. 127

 Words & Phrases: must be given their ordinary grammatical meaning. But technical words & expressions
must be given their technical meaning unless the will showed a clear intention to use the term in another
sense & that sense could be ascertained.

 The ordinary meaning of words & phrases is the meaning ascribe to them by the ordinary usage of the
society in which the testator lived at the time the will was made

 In effect where a testator lived in a particular area & engaged in a known trade, business or vocation in
which a word has a special meaning, the word will be given the special
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meaning2
 Gilmour v Macphillamy (1930) AC 712 –
testator gave income to 9 children in equal share for their lives with each child’s share passing to his own
children, if any, at his death. At the time of the testator’s death 5 of the children had died with issue. 2
subsequently died w/o issue. The other 2 survived the testator. Held: that the surviving children took the share of
their 2 siblings who had died w/o issue. – in the context of the will there was nothing indicating the need to give
secondary meaning to the word “survivors” although the hold unfairly excluded the descendant of the 5 children
who died earlier.
 Words in a will may be given their secondary meaning if it is established that the surrounding
circumstances indicate that the testator used the words or phrase in that particular meaning –
Re Smalley (1929) 2 Ch 112 – testator left property to “my wife EAS”. The named woman considered herself to be
wife & was in fact generally so regarded although the man had committed bigamy in marrying her. Based on the
surrounding circumstances, the word ‘wife’ was construe to mean the testator’s reported wife as the circumstances
indicated that he had used the word “wife” in the secondary sense
 Secondary meaning will be adopted if there is a definition clause in the will itself and the definition
need not be specifically inserted but may consist in the expression of meaning to be found in another
part of the will.
In Re Helliwell[1916] 2 Ch 580 – a testator who stated in his will that his illegitimate son was to share equally with
his other nephews was held to to have used “other nephews” to include illegitimate nephews.

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 The Golden Rule
 Where the construction of a will is doubtful, the court acts on the presumption that the testator did not
intend to die intestate (i.e. there is a presumption against intestacy)

 Rule stated by Lord Esher M.R. in Re Harrison, Turner v Hellard (1885) 30 Ch.D. 390
“ There is one rule of construction, which to my mind is a golden rule, viz, when a testator has executed a will
in solemn form you must assume that he did not intend to make it a solemn farce, - that he did not intend to die
intestate when he had gone through the form of making a will. You ought, if possible, to read the will a=so as
to head to testacy, not an intestacy. This is a golden rule

Hence the construction adopted by the court should not lead to the conclusion that the testator died intestate
unless there are clear words which can only lead to intestacy

Sometimes, the ordinary meaning of the words, rules of grammar & punctuation may be ignored and violated
in order to give effect to the golden rule.
The rule is applicable in the following circumstance:
 Where one construction would lead to an illegality but the other would not
 One construction will to the gift lapsing but the other would not;04/15/23
& in such cases4 that construction is preferred
which would not leas to a lapsed gift, b’cos that would mean a partial intestacy
Extrinsic evidence
 As a general rule a will is expected to speak for itself. Hence, no evidence obtained from outside the will is
admissible in the construction of the will
 Exception:
 The facts & circumstances existing at the time the will as made are admissible to explain its terms, e.g. extrinsic
evidence admissible to show that the testator belonged to a class or from a district which use a particular meaning
or in the testator’s trade, profession or vocation certain words had particular meaning. OR certain words used by
the testator are nicknames e.g. habitually calling wife “mother”

 Armchair Rule: is to the effect that in construing a will the court is to put itself in the position of the testator at the
time the will was made, in order to ascertain all the facts known to the testator that time
Allgood v Blake (1873) LR 8 Exch 160 :
“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 taken to have used words in the will,
& then to declare what is the intention evidenced by the words used with reference to those facts &
circumstances which were (or ought to have been) in the mind of the testator when he used those words”
Boyes v Cook (1880) 14 Ch.D, 53, @ 56: “You may place yourself in [the testator’s] armchair &
consider the circumstances by which he was surrounded when he made his will to assist you in
arriving at his intention”
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2 step approach to the Armchair rule
 Will is construed w/o reference to surrounding circumstances; &
 The apparent effect of the will is applied to the surrounding circumstances to ensure that the construction
of the will accords with circumstances prevailing at the time the will was made

Re Fish, Ingham v Tayner [1894] 2 Ch 83 – a gift was made by the testator to his ‘niece Elisa
Waterhouse.’ Evidence showed that neither the testator nor his wife had a niece by that name. As the
testator’s wife had an grand-niece of that name, it was held that the grand-niece should take b’cos the
testator had used the word ‘niece’ in a wide sense

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 Falsa Demonstratio Non Nocet Rule
 Falsa demonstratio non nocet cum de corpore constat = (a false description does not vitiate a
document or instrument, provided the thing has once been described with certainty).
 There are 2 aspects of the rule in its application
 That a false description of a person or thing does not invalidate a gift if it is clear what is the subject
described, i.e. the words devising a gift describe a thing/person satisfactorily but at the same time contains
words which are false then the gift will be saved despite the false description.

 In effect, if the description of the person/property consists of more than one part, of which one part is
accurate but the other part is inaccurate, if the accurate part sufficiently describes the person/property with
certainty, the inaccurate/false part will be rejected/ignored & will not vitiate the gift. Re Brocket, Dawes v
Miller [1908] 1 Ch 185

 In Yankah v Administrator-General [1971] 2 GLR 186 –

testator misdescribed his “Nyamitiase Lodge” as ‘Yamitiase House’ & also misnamed his son Ernest Hayford Topp
alias Ebo as Eboe Holdbrook Topp Yankah. CA upheld the grant of probate of the will.
Per Apaloo JSC
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 Per Apaloo JSC he stated “ The only difference b/n the words ‘Nyamitiase’ & ‘Yamitiase’ is that in the later the ‘N’ is
omitted. This may well be due to [the solicitor’s] difficulty in deciphering the testator’s handwriting. But the house in
question is sufficiently designated & there can be no doubt as to what house was intended to be devised. No point of
substance can be made of the fact that the premises was called ‘House’ instead of ‘Lodge.’ A to the mixing up of the
names, this may well be due to the testator’s defective memory when his end was near. But there seems to be no doubt
whom the testator meant. Whatever the errors, the rule of law on which a Court of Probate acts in these matters is that
mere misdescription does not invalidate a gift or put in the language of the classical Roman lawyer: falsa demonstratio
non nocet”

 In Re Price [1932] 2 Ch 54 – a testatrix held 400 National War Bonds which had been converted into other
gov’t securities b4 the date of the will. She held no War Loan. But in her will, she made a gift of ‘My 400 five
percent. War Loan, 1929-1947.’ Held: misdescription of National War Bonds as ‘War Loan’ was not fatal as
her words ‘5%...1929/1947’ were rejected as a misdescription or a falsa demonstratio which did not vitiate
the gift.

 2nd aspect of the rule is that additional words are not rejected as importing a false description of they are
capable of being construed as words of restrictions
 Wrightson v Calvert [1860] 1 J. & H. 250; 70 ER 740 – testator made a gift to his grandchildren living in a
locality. Although the testator has 3 grandchildren only 2 were living in the stated locality. Held: only the 2
grandchildren who lived in the stated locality were entitled to the gift. {It means that instead of rejecting the
reference to residence as false, it was held to be restrictive, so as to04/15/23
exclude those8 who were not living in the
locality
Ejusdem Generis Rule
 Where a wide or comprehensive word is used in conjunction with & following several others of a narrower
meaning, the scope of the meaning of the wide word will be restricted by the narrow words & controlled
by them.
 E.A. Driedger {Construction of Statutes (2nd edn) @ p116} provided the formulation of the rule as
“ Where general words are found, following an enumeration of persons or things all susceptible of being
regarded as specimens of a single genus or category, but not exhaustive thereof, their construction should be
restricted to things of that class or category, unless it is reasonably clear from the constext or the general scope
& purview of the Act that Parliament intended that they should be given a broader signification”

The reason for the rule is that the drafter (testator) must be taken to have inserted the general words in case
something which ought to have been included among the specifically enumerated items has been omitted.

For the rule to apply, it must be possible to construct a category (commonly called a ‘genus’) out of the
specific words to delimit what is to be considered as ‘of the same kind’

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 Re Miller, Daniel v Daniel [1889] 61 L.T 365 – testator gave wine & books in his home to A, Plates in the
same place to B & “all the rest of the furniture & effects at my residence” to C. After his death it was
discovered that he also kept share certificates & bank notes in his residence. Held: the word “effects” was
ejusdem generis with wine, books, plates & furniture (i.e. words which preceded it). The court took the
position that the testator intended C to take only effects of a character similar to items already described.
Hence, the bank notes & shares passed to the residuary legatee

Inconsistent Clauses
The general rule is that where 2 or more parts of a will are mutually inconsistent & irreconcilable, the latter
or latest clause must prevail as being the last expression of the testator’s wish {Fyffe v Irwin [1939] 2 All ER
271}

Expressed in a latin maxim “cum duo inter se pugnantia reperiuntur in testamento ultimum retum est”

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 The possible rationale for this seemingly rule of thumb may be that b’cos the last clause was the last expression of the
wishes of the testator & so must be deemed to prevail, in the same way that the latest will prevails over earlier ones in case
of an inconsistency.

 Sparingly used and only used as a last resort when every effort to reconcile the various provisions have been unsuccessful.

Exceptions
① Where upon holistic consideration of the will it appears to the testator intended the first of the inconsistent clause to
prevail

① Where inconsistency is found to be in a gift to 2 persons of the same property, both donees will be held to take some
interest therein

 Where the inconsistency arises from one clause in the will & another in a codicil, it is usually presumed that
the codicil has revoked the will to the extent of the inconsistency. This is in line with the wider rule that where
2 testamentary instruments are inconsistent, the last one revokes the earlier one to the extent of inconsistency
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