Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2017] CSOH 25

 

A637/15

OPINION OF LORD PENTLAND

In the cause

ROBIN DAVID FULTON & OTHERS

Pursuers

against

KEITH MUIR

Defender

Pursuer:  MacColl;  Turcan Connell

Defender:  R Anderson;  MacRoberts LLP

15 February 2017

Introduction
[1]        This action has been brought for the purpose of resolving an issue that has arisen as to whether an informal writing left by a testator, in addition to a formal will and two codicils, requires be given effect.  The informal writing in question (“the disputed writing”) purports to bequeath a legacy of £75,000 to the testator’s sister-in-law.  The case came before me for a proof before answer.  The whole of the evidence was agreed in two joint minutes, with the result that the hearing took the form of submissions on the agreed facts and on the law applicable to them.

The Agreed Facts
[2]        The pursuers are the executors of the late Iain Donald Fraser Gray (“Mr Gray”) by virtue of a deed of assumption and conveyance in their favour granted in June and July 2014 by the previous executors.  The defender is Mr Keith Muir.  He is the executor of the late Mrs Jean Manson, the beneficiary under the disputed writing.  Mrs Manson was Mr Gray’s sister.

[3]        Mr Gray died on 1 September 2008.  His wife, Mrs Moyra Campbell Gray (“Mrs Gray”), had predeceased him, having died on 10 March 2008.  At the time of their respective deaths, Mr Gray and Mrs Gray resided at 36 Callart Road, Dalfaber, Aviemore. 

[4]        Mrs Gray died leaving a will dated 6 December 2004, in terms of which Mr Gray was appointed as her executor.  The will was a professionally prepared document; it included several straightforward directions.  By clause (THREE) Mrs Gray directed her executor to make over the residue of her estate to her husband, Mr Gray.  The will provided also, in clause (FOUR), that Mrs Gray’s executor was to have the fullest powers of retention, realisation, investment, appropriation, transfer of property without realisation, and management of her estate as if he was absolute beneficial owner. 

[5]        In addition, Mrs Gray left two codicils to her will; these were dated 23 December 2005 and 1 February 2007.  In terms of the first of the codicils Mrs Gray provided inter alia as follows: 

            “I direct my executor to give effect to any writings subscribed by me however informal the same may be provided that in the opinion of my executor they clearly express my intentions.

 

And except as herein amended, I confirm my said Will in all respects.”

 

[6]        By her second codicil Mrs Gray gave certain further directions as to the disposal of her estate; these provisions are not material for the purposes for the present action.  The second codicil went on to provide that, except as amended by it, Mrs Gray confirmed her will and the first codicil thereto in all respects. 

[7]        At the date of her death, Mrs Gray also left a total of sixteen documents, partially typewritten and partially handwritten, headed “Informal Writings of Moyra C Gray”.  These documents were dated 1 March 2006 and in some cases also dated 7 May 2006.  Each of these documents was signed by Mrs Gray.  Some were also signed by Mr Gray.  The validity or invalidity of all but one of these documents is not the subject of any ongoing challenge or disagreement.  One of the documents is, however, the subject of disagreement as to its effect; this is the informal writing to which I refer in this opinion as “the disputed writing”. 

[8]        The disputed writing is an informal writing bearing the dates of 1 March 2006 and 7 May 2006.  It is signed by Mrs Gray and by Mr Gray.  In view of its importance for the purposes of the present proceedings, I shall set out the terms of the disputed writing in full. The capitalised words which appear in the disputed writing have been typed; the other words appearing in the disputed writing have been written by hand.  The terms of the disputed writing are as follows: 

“INFORMAL WRITINGS

OF

MOYRA C. GRAY

 

36 CALLART RD

DALFABER

AVIEMORE

PH22 1SR

 

01 – 03 – 2006

 

TO MY TRUSTEES,

 

I DIRECT YOU TO GIFT AND MAKE OVER THE FOLLOWING LEGACIES AFTER MY DEATH & my husbands. 

£75,000 to my sister in law

Mrs Jean Manson

Canisbay P.O.

Moyra C Gray

7/5/06

(Mr Gray’s signature appears here)

[MOYRA C. GRAY]”

 

[9]        The issue of construction arising in the present action revolves around the meaning and effect of the words, which are partly typewritten and partly handwritten: “after my death & my husbands”.  The pursuers contend that these words imposed a suspensive condition meaning that the legacy became payable to Mrs Manson or her successors only in the event that Mr Gray died before Mrs Gray.  Since he survived her, the suspensive condition has not been and can never now be purified, with the result that the legacy is not payable to the defender as Mrs Manson’s executor.  In the circumstances, the pursuers seek declarator that the disputed writing does not give rise to or result in any bequest being payable from Mrs Gray’s estate in favour of Mrs Manson or her executor. 

[10]      For his part, the defender submits that the only conditionality affecting the bequest to Mrs Manson is that payment of it falls to be made at the point in time when both Mrs Gray and Mr Gray have died; in other words, the condition is cumulative in the sense that both parties require to have died before the legacy is payable.  According to the defender, the condition does not address the question of the order in which the deaths of Mr and Mrs Gray require to occur before the bequest can take effect; it merely provides that they must both have died.

[11]      I should explain at this stage that Mrs Gray left two other informal writings which contained identical or very similar words to those in issue in the present case.  Each of these further informal writings is set out in the same way as the disputed writing and each of them bears the date of 1 March 2006.  They have both been signed by Mrs Gray and by Mr Gray.  The first of these further informal writings bears the additional date of 7 May 2006.  It states that “after my death and also my husband’s” the estate is to be divided equally between “his 3 charities” and certain other specified charities “after the other bequests are paid”.  I understood from what counsel told me at the proof that the terms of this informal writing have not been implemented.  For convenience, I shall refer to this informal writing as “the second informal writing”.

[12]      The other informal writing that is of relevance says that “after my death & my husbands” the sum of £30,000 is to be paid to a named dog (I was told that this was the family pet) and to a specified lady “for their mutual benefit”; there was further provision for a legacy of £30,000 to be paid to the same lady “on my death”.  It was not disputed at the proof that the dog had died before the bequest in its favour could be implemented.  I understand that the separate legacy of £30,000 was paid to the lady identified in the informal writing.  I shall refer to this informal writing as “the third informal writing”.

[13]      Following upon Mrs Gray’s death, Mr Gray was confirmed as her executor on 9 July 2008.  Prior to and following upon his confirmation, Mr Gray took steps to act upon many of the informal writings left by his wife and make payments to the named beneficiaries from Mrs Gray’s estate.  Payments made pursuant to other informal writings were made within six months of Mrs Gray’s death.  Mr Gray did not, however, take any steps to act upon or implement the disputed writing. 

[14]      At the time of Mr Gray’s death on 1 September 2008, succession to his estate was regulated by a trust disposition and settlement dated 15 June 2004 and a codicil dated 1 February 2007. 

[15]      The parties were agreed that affidavits signed by Mr Robin David Fulton and by Mr Robert Buchanan Alexander Bolton, both solicitors, should stand as their evidence. 

[16]      In his affidavit, Mr Fulton summarises the circumstances in which he and TC Trustees Limited came to be appointed as Mr Gray’s executors.  The details are not relevant for present purposes.  Mr Fulton explains that following Mrs Gray’s death, Mr Gray made a number of payments in his capacity as executor of his late wife; these were based upon the informal writings.  He confirms that no payment was made or so far as he is aware was instructed to be made by Mr Gray on the basis of the disputed writing.  Mr Fulton goes on to explain that the defender, as Mrs Manson’s executor, is defending the present action on the basis that the disputed writing formed a valid testamentary instrument and should be given effect.  In other words, the defender’s position is that effect should be given to the purported legacy of £75,000 bequeathed to Mrs Manson.  The view of Mr Gray’s executors is that this is a matter which should be determined by the court.

[17]      Mr Bolton was formerly Mr Gray’s executor.  In his affidavit, Mr Bolton says that in the course of winding up Mr Gray’s estate he took the view that Mr Fulton’s advice should be sought and that he should be appointed as executor because the executory was a particularly difficult one which required a greater expertise than could be provided by a small firm, such as the one in which Mr Bolton is a partner.  Mr Bolton goes on to explain that Mrs Gray left sixteen documents, part typewritten and part handwritten, containing her informal writings and that the question of the validity of only one of these informal writings is the subject of the present proceedings.  Mr Bolton says that he does not recall any discussion with Mr Gray about the legacy of £75,000 left to Mrs Manson.  He has, however, helpfully produced certain attendance notes from his files.  He explains that it is his practice always to attempt to make contemporaneous notes for his file within a few hours of a telephone call or meeting or of instructions being given.  Mr Bolton states that it is his recollection that shortly before Mrs Gray died he discussed with her and acknowledged that she had a number of informal writings in her possession.  Shortly after her death, Mr Gray could not find these writings immediately.  Mr Bolton’s recollection is that a few days later the informal writings were found, either down the side of an armchair or the sofa. 

[18]      There are two file notes produced from Mr Bolton’s file which are of interest.  The first of these is dated 26 March 2008 and records a telephone call between Mr Bolton and Mr Gray.  The note states that it was clear that Mr Gray was still distressed but was starting to tackle business matters.  It goes on to refer to one particular matter which concerned Mr Gray, namely that it was known that Mrs Gray had left informal writings and she had asked for them just shortly before her death.  The note states that Mr Gray could not now trace them at all.  The file note then continues as follows: 

            “Learning that these IWs (i.e. informal writings) had been written out by IG (i.e. Mr Gray) and then signed by Mrs G (i.e. Mrs Gray) and that, as a result, IG knew their content and would want to implement their content.  Suggesting that he take an opportunity asap to set down what he can recall of the content of the IWs.  His only explanation was that Mrs G had perhaps destroyed the documents although even that seemed a little unlikely.”

 

[19]      There is a further file note dated 31 March 2008 recording a telephone call from Mr Gray to report that he had found his late wife’s informal writings. 

 

The Condition in the First Codicil
[20]      The first of Mrs Gray’s two codicils contained a direction to her executor that he was to give effect to any writings she subscribed, however informal they might be, “provided that in the opinion of my executor they clearly express my intentions.” The question arises as to whether, in the circumstances which have occurred, this condition has been satisfied.  The pursuers submitted that it had not been.  There was no evidence, or so the pursuers argued, that Mr Gray in his capacity of executor had ever formed the requisite opinion.  Nothing could be taken from the fact that his signature appears on the disputed writing.  It was not known when, in what circumstances or why he had signed it.  He might well have signed it at the same time as Mrs Gray; this was said to be the more probable explanation.  There was no evidence that he had received any advice on the need for him to form an opinion, as executor, on whether the disputed writing clearly expressed his late wife’s intentions.

[21]      In my opinion, the submissions for the pursuers on this branch of the case are unconvincing and fall to be rejected.  The evidence on the point is not extensive, but I consider it to be sufficient to show, on the balance of probabilities, that Mr Gray, acting as his late wife’s executor, formed the opinion that the disputed writing clearly expressed her intentions.  The file note prepared by Mr Bolton on 26 March 2008 records a discussion in which Mr Gray explained that he had been directing his mind to the question of whether he would wish to implement Mrs Gray’s informal writings; that is the very issue he required to address as her executor in terms of the direction contained in the first codicil.  Mr Gray told Mr Bolton that he was aware of the contents of the informal writings because it was he who had written them.  It is of interest to note that Mr Gray said to Mr Bolton that his wife had signed the informal writings, but he did not say that he had signed them.  Nor did he say that he had witnessed the informal writings.  In the circumstances, I consider that it can be legitimately inferred that Mr Gray probably signed the informal writings (including the disputed writing) after they were found, a few days following the first telephone call with Mr Bolton.  I am satisfied that Mr Gray probably did so in order to express and record his view, as the executor of Mrs Gray’s estate, that the informal writings should be given effect; that seems to me to be the most likely explanation for Mr Gray signing the informal writings after they had turned up.  Signature of a document, without more, usually signifies that the person signing gives his approbation to the document in some sense.  In the context of the present case, the most natural and likely explanation for Mr Gray signing the disputed writing was to indicate that he, as executor, was giving his approval to the document and that he was doing so in fulfilment of the direction given to him as executor by the first codicil.  That explanation appears to me to be one that fits best with the evidence from the file notes and to be in accordance with common sense.  It is true that there is no evidence as to exactly when (in the period following Mrs Gray’s death) Mr Gray signed the informal writings, but this does not matter in my view. Even if he signed them before he was formally confirmed as executor nominate in July 2008, it is reasonable to infer, in the absence of any suggestion that he ever sought to cancel, nullify or withdraw his signature, that on the formalities of confirmation being completed, Mr Gray impliedly ratified his earlier approbation of the informal writings. 

[22]      Counsel for the defenders drew attention to the case of Wilsone’s Trustees v Stirling and others (1861) 24 D 163.  The case concerned a mutual de praesenti general conveyance (a trust-disposition and settlement) by two sisters under and in terms of which the survivor of them was given a liferent interest in the estates of them both; on the survivor’s death the joint estate was to be conveyed to trustees for certain specified purposes.  The case arose before the enactment of the Titles to Land Consolidation (Scotland) Act 1868 when it first became competent to bequeath land to whomsoever one wished.   The conveyance contained a destination of the residue, after payment “of all legacies or payments which we may direct to be made out of our respective shares, by letter or other writing under our respective hands, whether formal or informal”.  Subsequently, the sisters executed two informal writings.  They were written and signed by one of the sisters and signed by the other.  After the death of the first sister, the surviving sister executed certain further informal writings.  Following the second sister’s death, certain claimants on the fund in medio argued that the later writings of the surviving sister had the effect of revoking the first two informal writings, which had been signed by them both. 

[23]      The First Division of the Inner House of the Court of Session held that the first two informal writings should be given effect notwithstanding that they were holograph of only one of the sisters.  The first two informal writings, therefore, were binding on the first sister’s estate and could not be subsequently revoked by later informal writings granted by the second sister alone. 

[24]      Counsel for the defenders submitted that the reasoning of Lord Curriehill (at pages 175 and 176) was of interest for the purposes of the present case.  In that passage his Lordship attached importance to the fact that the first two informal writings had been written by and bore the signature of the surviving sister; she was the person with the responsibility of carrying into effect the testamentary directions of her sister.  In the circumstances, it was not open to the surviving sister to “ignore the documents to which she had been a party years before.”  She could not revoke the first two informal writings after the death of her sister.

[25]      The facts of Wilsone’s Trustees were different from those of the present case, not least because the signatures on the first two informal writings were of persons who were both parties to the trust-disposition and settlement and they were each granters of the informal writings; in the present case the original will was, of course, executed by Mrs Gray alone and the disputed writing relates only to her estate.  Despite the differences in the factual context, I consider that Wilsone’s Trustees is of some limited assistance insofar as Lord Curriehill regarded it as important that the surviving sister, who had the duty of giving effect to her predeceasing sister’s testamentary intentions, wrote and signed the first two informal writings.  In the present case, Mr Gray, his late wife’s executor, apparently wrote and certainly signed the disputed writing.  When one asks why he signed it, the most probable answer, in the particular circumstances of the present case, is that his purpose was to record his opinion as executor that the disputed writing clearly expressed Mrs Gray’s intentions.  It may be noted also that Mr Gray is not described or referred to in the disputed writing as a witness.  So, it is reasonable to infer that he signed in some other capacity.  The most obvious and, in my view, probable capacity was as executor.

[26]      For these reasons, on the balance of probabilities I find as a fact that Mr Gray signed the disputed writing in order to express and record his opinion, in his capacity as executor-nominate, that it clearly expressed his late wife’s intentions.  Accordingly, the condition in the first codicil has been purified; the result is that the disputed writing qualifies as a valid testamentary direction by Mrs Gray.  This, of course, leaves open what the true meaning of the disputed writing is.  I shall come to that question shortly.  Before turning to the question of construction of the disputed writing, there is another issue that I must first address.

 

Was the Disputed Writing Impliedly Revoked by the Second Codicil?
[27]      Counsel for the pursuers argued that even if the condition necessary for the disputed writing to be treated as part of Mrs Gray’s will had been satisfied, the disputed writing had, in any event, been impliedly revoked by the second codicil to her will and was, therefore, of no effect.  It will be recalled that the disputed writing bore the dates of 1 March 2006 and 7 May, 2006; the second codicil was dated 1 February 2007.  The argument was that because the second codicil confirmed the original will and the first codicil it must be read as having been intended to deal with the disposal of the whole of Mrs Gray’s estate.

[28]      In my opinion, this line of argument is misconceived.  The effect of the second codicil was inter alia to confirm the previous codicil; it said so expressly.  The clear purpose of the first codicil was to direct that informal writings were to receive effect so long as Mrs Gray’s executor was satisfied that they clearly expressed her intentions.  By confirming the first codicil, Mrs Gray cannot be taken to have revoked her earlier direction regarding her informal writings; on the contrary, the effect of the second codicil was to affirm that direction.  So, the direction continued to be effective even after (and notwithstanding) the granting of the second codicil.  The result was that Mrs Gray’s informal writings, whether granted before or after the second codicil, would be effective in the event of her executor coming to the opinion after her death that they clearly expressed her intentions.  For these reasons, I reject the pursuers’ argument on implied revocation of the disputed writing by the second codicil.  That takes me to the issue of construction of the disputed writing.

 

Construction of the Disputed Writing
[29]      The principles which should be applied to the question of construction of the disputed writing are not in doubt.  They are set out in the judgment of Lord Neuberger of Abbotsbury PSC in Marley v Rawlings [2015] AC 129 in paragraphs 17 to 26.  In that case the Supreme Court made it clear that the approach to interpreting wills is the same as the approach to interpreting a contract.  At paragraph 19 Lord Neuberger said this: 

“When interpreting a contract, the court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words, (a) in the light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions of the document, (iv) the facts known or assumed by the parties at the time that the document was executed, and (v) common sense, but (b) ignoring subjective evidence of any party’s intentions.”

 

[30]      His Lordship continued as follows in paragraph 20: 

“When it comes to interpreting wills, it seems to me that the approach should be the same.  Whether the document in question is a commercial contract or a will, the aim is to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context.  As Lord Hoffman said in Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2005] 1 All ER 667, para 64, ‘No one has ever made an acontextual statement.  There is always some context to any utterance, however meagre.’  To the same effect, Sir Thomas Bingham MR said in Arbuthnott v Fagan [1995] CLC 1396, 1400 that ‘courts will never construe words in a vacuum’”. 

 

[31]      In paragraph 23 Lord Neuberger referred with approval to what his Lordship described as the well-known suggestion of James LJ in Boyes v Cook (1880) 14 Ch D 53, 56, that, when interpreting a will, the court should “place [itself] in [the testator’s] armchair”.  This, as Lord Neuberger explained, is consistent with the approach of interpretation by reference to the factual context.

[32]      In Arnold v Britton [2015] AC 1619, paragraph 15 (decided a few months after Marley v Rawlings) Lord Neuberger cited with approval the well-known statement by Lord Hoffman in Chartbrook Ltd v Persimmon Homes Ltd [2009] AC 1101, paragraph 14, that when interpreting a written contract, the court is concerned to identify the intention of the parties by reference to:

“… what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean.”

 

 

[33]      Counsel for the defender submitted that the words “after my death & my husbands” where they appear in the disputed writing were clear and unambiguous.  They simply meant what they said: the legacy was payable only after the deaths of both Mrs and Mr Gray.  There was no justification for reading in words which were not there, so as to provide that the legacy was only payable in the event that Mr Gray died before his wife.  To do so would involve the court in the impermissible exercise of rewriting the testator’s will.  Counsel also submitted that if the legacy only became payable on condition that Mr Gray predeceased his wife, this would have the effect of defeating the purpose of the informal writings clause in the 2005 codicil; he would, in that event, be denied the opportunity to consider, as executor nominate, whether the disputed writing expressed his wife’s genuine intentions.   Accordingly, as a matter of general coherence the pursuers’ construction was inconsistent with the terms of the informal writings clause.  It was further argued that common sense could not be applied retrospectively so as to impute a particular intention to the testator which was not reflected in the words she chose to use; any practical difficulties that might be said to arise from the defender’s construction were not insurmountable.  Many ill-thought through bequests – clear in their terms – might give rise to practical complexity.  In the circumstances which had occurred, all that Mr Gray as executor required to do was to ensure that sufficient funds were retained in the estate to allow the legacy to be satisfied after his death. 

[34]      Counsel for the defenders went on to submit that nothing could be taken from the terms of the two other informal writings in which similar words to those in issue appeared.  The vagueness of the reference in the second informal writing to “his 3 charities” would probably lead to this informal writing being held void on the ground of uncertainty; reference was made to Angus’s Executrix v Batchan’s Trustees 1949 SC 335.  It was submitted that in this informal writing Mrs Gray was innovating upon the assets that would otherwise be available as part of the residue to go to her husband; it was thus consistent with all her other informal writings.  As far as the third informal writing making provision for the family pet was concerned, this merely showed that Mrs Gray had been intent on ensuring that the dog was properly looked after, whether her husband died before her or after her.  The court should be wary of being drawn into speculation as to a testator’s intention; reference was made to Anderson’s Trustees v Forrest 1917 SC 321.

[35]      In my opinion, the correct way in which to establish the meaning of the words “after my death & my husbands” where they appear in the disputed writing is to read them in their proper context. A full appreciation of the context in which Mrs Gray used the words is crucial in trying to understand what she meant by them.  That approach is amply supported by the case law I have cited.  The defender’s submissions tended to focus heavily, indeed exclusively, on the actual words used, as if they should be read in a vacuum, isolated from their context, and stripped of their surrounding circumstances; in other words, in a strictly literal sense.  This is not, I believe, the right approach to construction of the disputed writing.  Counsel for the defenders placed reliance on a passage from the speech of Viscount Simon LC in Perrin v Morgan [1943] AC 399 at 406 where his Lordship said this:

            “My Lords, the fundamental rule in construing the language of a will is to put on the words used the meaning which, having regard to the terms of the will, the testator intended.  The question is not, of course, what the testator meant to do when he made his will, but what the written words he uses mean in the particular case – what are the ‘expressed intentions’ of the testator.”

 

It is notable, however, that later in his speech (still on page 406) the Lord Chancellor added this:

            “I agree, of course, that, if a word has only one natural meaning, it is right to attribute that meaning to the word when used in a will unless the context or other circumstances which may be properly considered show that an unusual meaning is intended, but the word ‘money’ has not got one natural or usual meaning.  It has several meanings, each of which in appropriate circumstances may be regarded as natural.”

 

So there is no doubt that, for Viscount Simon, context was important, at least where the words in issue had different possible shades of meaning. 

[36]      The modern approach to construction would perhaps go somewhat further than this or would at least express the principles differently, although I doubt that there is really any substantial difference.  As Lord Neuberger explained in Marley v Rawlings, the aim is to identify the intention of the author of the words by interpreting the words in their documentary, factual and commercial context.  Even on Viscount Simon’s formulation, it seems to me that context would be crucial to the interpretation of the words used in the disputed writing.  I say this because, in my view, the words “after my death & my husbands” have different possible shades of meaning: they are reasonably capable of being understood to mean either that the bequest is to be paid only after both Mrs Gray and her husband have died or they could be reasonably read as meaning that the bequest falls to be paid on condition that Mrs Gray died after her husband.  In these circumstances, I venture to suggest that Viscount Simon, if called on to interpret the critical words, would have been unlikely to have ignored the context in which they had been used.

[37]      Other members of the appellate committee in Perrin made clear that the exercise of construing words chosen by a testator would often (if not always or at least usually) require that regard be paid to the context in which the words had been used.  At page 419, Lord Russell of Killowen said this:

            “There has been, however, a tendency for courts to allow the rule (i.e. the rule as to the strict meaning of the word ‘money’) to prevail over context, and to operate as a hard and fast limitation of the meaning of the word ‘money’ when used in a will, and I agree with your Lordships that it is advisable to take this opportunity of establishing that the meaning of the word ‘money’ when used by a testator (whether inops consilii or himself a skilled conveyancer) is not restricted by any hard and fast rule, but depends on the context in which it occurs, properly construed in the light of all relevant facts. In other words, given such a sufficient context, the word ‘money’ may include more than what has been called the strict meaning, and may even include the whole residuary personal estate.”

 

Lord Romer at page 421 added the following:

            “The rules of construction, in other words, should be regarded as a dictionary by which all parties, including the courts, are bound, but the court should not have recourse to this dictionary to construe a word or a phrase unless it has ascertained from an examination of the language of the whole will, when read in the light of the circumstances, whether or not the testator has indicated his intention of using the word or the phrase in other than its dictionary meaning – whether or not, in other words, to use another familiar expression, the testator has been his own dictionary.”

 

[38]      In the circumstances of the present case, the context in which the disputed writing falls to be construed comprises the facts (a) that in her will Mrs Gray directed that the residue of her estate should go to her husband and (b) that she later executed three informal writings in which she made provision for what should happen to her estate after her death and her husband’s death.  While counsel for the defender sought to argue that something (it was not clear to me exactly what) turned on the fact that in the second informal writing the word “also” appeared in the critical phrase, I am satisfied that Mrs Gray can only reasonably be taken as having intended the words referring to her death and her husband’s death to carry the same meaning in each of the three informal writings.  Any other approach seems highly artificial.

[39]      In my opinion, when the three informal writings are read in the context I have identified, it is clear that Mrs Gray intended them to deal with what should happen to her estate in the event that her husband did not survive her and was, therefore, unable to succeed to the residue of her estate left to him on her death.  In that event, “the estate”, as it is put in the second informal writing, was to be divided equally between the charities “after the other bequests are paid” – that is the various specific legacies left in all the informal writings.  If the words “and also my husband’s” were to mean that the direction did not take effect until both Mr and Mrs Gray have died, the result would be that on Mrs Gray dying first, her husband would not succeed to the residue of her estate.  It would have to be preserved in some way (exactly how is not clear) so that it could be divided between the charities when both Mr and Mrs Gray were dead.  That would be entirely contrary to the intention expressed in Mrs Gray’s will that her husband should succeed to the residue of her estate.  It is worth recalling that in 2007 she reaffirmed her will by the terms of her second codicil.  It would be extraordinary, particularly in view of her decision to confirm the terms of her will in 2007, if Mrs Gray’s intention was that should she predecease her husband, her estate should be somehow maintained and conserved, perhaps for many years, to await Mr Gray’s own death, upon which event it would be distributed amongst the charities.  Moreover, on that interpretation none of the other bequests would be paid until Mr Gray had died.  Such an interpretation is, in my view, contrary to common sense; it would produce an outcome which Mrs Gray cannot truly have intended.  I should add that I do not think it matters, in the context of this analysis, that the reference to “his 3 charities” might conceivably render the informal writing void from uncertainty, as counsel for the defender argued.  The question for present purposes is what the testator intended the words in issue to mean, not whether the terms of the bequest were such that they failed to create a valid and enforceable testamentary direction.

[40]      Similar considerations apply in the case of the third informal writing, in which Mrs Gray sought to make provision for the care of the family dog.  It is reasonable to assume that Mrs Gray was confident that if she died before her husband, he would continue to look after the dog; it was not just Mrs Gray’s dog, it was the family pet.  If, however, he was to predecease her, then there had to be provision made for what should happen to the dog following her own death.  So, the directions on this were only intended to come into effect in circumstances where Mrs Gray’s death post-dated that of her husband.

[41]      When one comes to the disputed writing, I consider that Mrs Gray must have intended the words “after my death & my husbands” to mean the same as they did in the second and third informal writings where they (or words almost identical to them) appear.  So, the £75,000 legacy was only to be paid to Mr Gray’s sister if he died before Mrs Gray.  Again, it seems to me to defy common sense to hold that Mrs Gray intended that if she died before her husband, payment of the legacy should be deferred until after her husband’s death, perhaps many years later.  Such an arrangement would create a pointless administrative burden on Mrs Gray’s estate.  The amount of £75,000 would effectively be sterilised until Mr Gray’s death.  It is unclear what would happen to the money in the period between Mrs Gray’s death and that of her husband.  Would he be entitled to receive any interest earned on it as the residuary beneficiary or would Mrs Manson be entitled to any such interest?  On the defender’s approach, the question is left unanswered.

[42]      I would add that I do not accept the defender’s argument that the interpretation I favour would have the effect of defeating the terms of the informal writings clause in the 2005 codicil.  It is obviously correct that if Mr Gray were to die before his wife then he could not exercise the duty imposed on him as her executor to consider whether the disputed writing (or any of her other informal writings) genuinely expressed her intentions.  This does not, however, negate the terms and effect of the 2005 codicil.  In the event that Mr Gray was to predecease his wife, it would be possible to have someone else appointed to the office of executor instead of him; this would allow effect to be given to the informal writings clause by that person.

 

Conclusion
[43]      For the reasons I have given in this Opinion, I have concluded that the pursuers’ submissions on the question of construction of the disputed writing are to be preferred to those advanced on behalf of the defender.  I consider, in other words, that the bequest to Mrs Manson only became payable on condition that Mrs Gray survived her husband.  Since Mrs Gray died before Mr Gray, the condition has not been (and cannot ever be) purified; the bequest is not, therefore, payable.  I have accordingly sustained the pursuers’ first plea-in-law, repelled the defender’s pleas and pronounced decree of declarator in the terms proposed by the pursuers in the amended first conclusion of the summons.  I have reserved all questions as to expenses.