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Cite as: [2006] CSIH 35, [2006] ScotCS CSIH_35

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SECOND DIVISION, INNER HOUSE, COURT OF SESSION

Lord Justice Clerk

Lord Johnston

Lord Philip

[2006] CSIH 35

P684/05

OPINION OF THE COURT

delivered by LORD JOHNSTON

PETITION

WILLIAM JAMES BILSLAND FORSYTH and ANOTHER

Petitioners;

against

NATIONAL KIDNEY RESEARCH FUND and OTHERS

Respondents:

for

DIRECTIONS

_______

Act: Lindsay; MBM Commercial LLP (Petitioners)

Alt: Agnew of Lochnaw, Q.C.; Anderson Strathern (Respondents)

13 June 2006

[1] This petition is brought by the executors of the late Margaret Bilsland (the "testator") who died on 25 April 2001 leaving a will dated 30 January 1998 and codicils to that will dated 6 April 2001 and 12 April 2001, all registered in the Sheriff Court books of South Strathclyde, Dumfries and Galloway on 22 August 2001. The respondents are various charities named in the will.

[2 ] The testator had no children and no siblings, although there were known to the executors to be at least three blood relations but in name only, they all being untraceable. Nevertheless they would constitute the heirs in intestacy if that issue were to arise. However, the testator had a number of persons whom she referred to as nephews and nieces, although they were in fact blood relations of her husband and the relevant list is to be found in an appendix to the petition ("the relevant beneficiaries").

[3 ] Clause Three of the will contains certain pecuniary legacies to named individuals and a church. Clause Four of the will contains specific legacies to named individuals. Clause Five is in the following terms:

"Five (one) I direct my executors to make over two fifths of the residue of

my estate to such of my nephews and nieces as shall survive me equally among them. And I declare that in the event of any of my said nephews and nieces failing to survive me I bequeath the share which he or she would have taken on survivance to the beneficiaries named in clauses Five (two) to (nine) hereof in proportion to the share therein specified.

(two) to The National Kidney Research Fund, Department WTC,

Forty two Lower Marsh, London, SE1 7RG, one tenth.

(three) to Cancer Research Campaign, Fifteen Lynedoch Street,

Glasgow, G3 6ES, one tenth.

(four) to the Chest, Heart and Stroke Association, Whitecross Street,

London, EC1Y 8JJ, one tenth.

(five) to Arthritis Care, Five Grosvenor Crescent, London, SW1X

7ER, one tenth.

(six) to the Abbeyfield Society, Scotland, one twentieth.

(seven) to Yorkminster Fund, Church House, Ogleforth, York, one

twentieth

(eight) to the National Trust, Legacies Unit, Thirty six Queen Anne's

Gate, London, SW1H 9AS, one twentieth.

(nine) to the National Trust for Scotland, Five Charlotte Square,

Edinburgh, EH2 4DU, one twentieth.

And I declare that in respect of the above bequests numbers two to nine, the signature of the Treasurer then in office shall be sufficient discharge to my executors."

The question posed on behalf of the petitioners is in the following term:

"Whether the petitioners as executors may distribute the part of the residue of the estate of Mrs Bilsland not bequeathed in Clause Five (one) of the Will to the beneficiaries referred to in Clause Five (two) to (nine) of the Will in the manner there specified or must distribute that part of the residue as intestate estate?".

[4 ] It has to be observed at once that paragraph (one) of clause Five deals with two fifths of the residue of the testator's estate. There is no further specific mention of residue in the remainder of the clause, nor indeed with regard to the remaining estate not dealt with in paragraph (one). However, as a matter of fact an addition of the fractions used in the remaining part of the clause, i.e. (two) to (nine), results in the sum of three fifths, which, if added to the two fifths in paragraph (one), constitutes, as a matter of arithmetic, the whole of the residue of the estate.

[5 ] It is to be observed that the legacy of two fifths to the relevant beneficiaries in paragraph (one) is subject, in each case, to a survivance clause which, in the event of failure in any case executes a destination over of the relevant share in favour of the named charities in the nominated proportions. As a matter of fact we were informed that all the relevant beneficiaries are still in life and therefore the destination over has not operated. It is to be noted also at this stage that counsel for the respondents did not make any claim to the two fifths with which paragraph (one) is concerned.

[6 ] Mr. Lindsay appearing for the executors took, quite properly, a neutral position but informed us that the executors had received conflicting advice as to how clause five as a whole and in particular the claims of the charities in paragraphs (two) to (nine) should be dealt with. On the one hand it appears that the executors had been advised that the charitable beneficiaries in paragraphs (two) to (nine) only took any right to the estate in the event of the survivance provision operating in paragraph (one) and in the event of that not happening the purported legacies in paragraphs (two) to (nine) could not operate and the remaining three fifths of the estate had to fall into intestacy.

[7 ] On the other hand Mr. Lindsay informed us that other advice suggested that properly construed the legacies in paragraphs (two) to (nine) comprising three fifths of the estate should be construed as a number of free-standing legacies of the residue and therefore payable to the charities in question, in the appropriate proportions.

[8 ] We should record that we were referred to Blair v Blair 1849 12 D. 97, Auld's Trustees 1933 S.C. 176 and Colin v Hutchison 12 R. 947.

[9 ] We consider that this matter is not determined by authority beyond the general propositions to be found in Auld's Trustees in respect of the presumption against intestacy. The matter has to be determined intrinsically from the terms of the will against that background.

[10 ] Sir Crispin Agnew, Q.C., appearing for the respondents adopted the second of the two positions that had been laid before us by Mr. Lindsay on behalf of the executors, namely, that properly construed, he having already indicated he made no claim to the initial two fifths of the residue, the bequests in paragraphs (two) to (nine) which together would amount to three fifths of the residue should be treated as freestanding bequests of the respective shares of the residue. He accepted this did involve writing in to each of the relevant paragraphs the phrase "of the residue".

[11 ] We are in no doubt that the position put forward by Sir Crispin is correct.

[12 ] The presumption against intestacy is a very strong one and from an overall study of the testator's will it seems to us that she clearly intended to dispose of the whole of her estate. The fact that the fractions to be found in each of the provisions of clause Five, including paragraph (one), on being added together account for the whole of the residue is highly indicative of the fact that the testator intended to dispose of the whole of the residue of her estate in the relevant clause. It does not in our opinion do violence to the language of the will simply to read in, whether by implication or expressly, in relation to each of the relevant charitable bequests in clause Five the words "of the residue". The fact that intestacy is inevitable unless the survivance destination over operates in the terms of paragraph (one) militates strongly against any other construction.

[13 ] In these circumstances we are clearly of the view that clause Five was designed by the testator, and clearly expresses her intention as such, to deal with the whole of the residue of her estate not otherwise dealt with by the previous clauses in the will. The destination over in paragraph (one) was clearly designed to make sure that if that bequest failed in any particular respect the money would thereafter proceed to the relevant charities in the appropriate proportions. It was not designed to trigger the legacies in paragraphs (two) to (nine) but merely to be an addition to them in certain circumstances.

[14 ] In these circumstances, and for these reasons, we will answer the question posed in the petition in the affirmative in relation to the first alternative and the second alternative in the negative.