Learning Outcomes
After studying this article, you will be able to identify the key rules governing the interpretation of wills for SQE2, including how courts determine the testator's intention, the approach to ambiguity or uncertainty, and when extrinsic evidence or rectification is permitted. You will also be able to apply these principles to exam-style scenarios and spot common errors that may arise in interpreting testamentary documents.
SQE2 Syllabus
For SQE2, you are required to understand the legal rules and practical techniques for interpreting wills, especially where the meaning of provisions is unclear or disputed. Particular attention is required in your revision to:
- How courts ascertain and give effect to the testator’s intentions as expressed in the will.
- The construction of ambiguous, general or technical terms within a will.
- The circumstances where rectification or the admission of extrinsic evidence is allowed.
- The impact of statutory provisions such as the Wills Act 1837 and the Administration of Justice Act 1982 on will interpretation.
- The distinction between construction and rectification of wills, and the remedies available when the text fails to reflect the testator’s wishes.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- In what circumstances will a court permit rectification of a will?
- What does “the will speaks from death” mean in the context of interpreting testamentary gifts?
- When can extrinsic evidence of the testator’s intent be used in interpreting a will?
- How will the courts resolve a clear ambiguity in the wording of a will relating to a beneficiary’s identity?
Introduction
When resolving disputes or uncertainty over a will, a solicitor must know how courts approach interpretation, ensuring the testator’s true wishes are given effect within the confines of legal rules. The SQE2 requires an understanding of the principles applied by courts when faced with unclear, incomplete or conflicting testamentary language, and the difference between a defect in the will’s meaning and a clerical or substantive error.
Key Term: construction of a will
The process by which a court determines the legal meaning and effect of a will’s words.Key Term: rectification
A court’s power to alter the wording of a will so it reflects the testator’s true instructions, where the original fails to do so due to a clerical error or misunderstanding of instructions.Key Term: extrinsic evidence
Evidence not contained within the will itself, such as statements or circumstances, used in limited situations to clarify a will’s meaning.
Interpreting Wills: General Principles
The primary rule of will interpretation is that the court’s objective is to determine and give effect to the intention of the testator as expressed within the will itself. Interpretation focuses on the words used in their ordinary and grammatical sense, but those words must be read in the context of the whole document and relevant background circumstances.
Expressed Intention and the Natural Meaning Rule
Courts generally apply the natural and ordinary meaning of the words used, unless that interpretation would produce an absurd or plainly unintended result. The entire will is considered—not just isolated provisions—to ascertain the testator’s overall intention.
Key Term: testator
The person who makes a will.
Specific Technical or Non-Technical Words
Where technical terms are used, courts ascribe their legal meaning unless the context implies something different. By contrast, ordinary words are interpreted according to their usual sense at the time the will was drafted.
Worked Example 1.1
A will provides, "I leave my property at Rose Cottage to my nephew." At the time of making the will, the testator owned two properties named Rose Cottage, one acquired only four months before death. Which property passes?
Answer:
The court would look at all the will’s provisions and any admissible surrounding evidence to determine the intended property. If ambiguity remains, extrinsic evidence may be allowed, or the gift could fail for uncertainty.
The Will “Speaks from Death”
A core interpretive rule is that, for property, a will is read as if it were made immediately before the testator's death, unless a contrary intention appears. This means gifts refer to the property as owned at death and to the beneficiaries as described at the date of the testator’s death.
Key Term: the will speaks from death
The principle that a will is construed with reference to the property and persons existing at the testator's death, unless otherwise stated.
Worked Example 1.2
The will leaves "my blue car" to David. At death, the testator’s only car is now red, as it was repainted two years after the will was signed.
Answer:
The gift will likely take effect, as courts focus on the asset held at death fitting the description, despite changes over time—unless the will indicates the colour was meant to be essential.
Resolving Ambiguities and Uncertainties
When a will’s language is unclear or open to several interpretations, courts apply specific rules:
- Patent ambiguity (ambiguity apparent on the face of the will): The court will not admit evidence of intention but may declare the gift void if the ambiguity cannot be resolved by construction.
- Latent ambiguity (apparent only when applying the will in practice): The court may admit extrinsic evidence to attempt to resolve the ambiguity, provided it does not rewrite the will.
Worked Example 1.3
A will leaves "£5,000 to my cousin Lee." The testator has two cousins named Lee.
Answer:
This is a latent ambiguity. The court may admit extrinsic evidence, such as letters or conversations, to clarify which Lee was meant.
Extrinsic Evidence
Legislation now permits extrinsic evidence, including statements by the testator, to interpret a will in certain circumstances:
- Where any part of the will is meaningless.
- Where the language is ambiguous on its face.
- Where ambiguity appears only in light of the circumstances.
Exam Warning
Do not assume that evidence from outside the will is always permitted. Evidence of intention is only admissible where ambiguity or meaninglessness exists as defined by statute; otherwise, the court strictly confines itself to the will’s wording.
Rectification of Wills
Where a will’s text, due to a clerical error or the drafter’s misunderstanding of instructions, fails to express the testator’s intentions, the court can order rectification so the will reflects the instructions as they were meant.
Key Term: clerical error
A mistake in reading, writing, or copying a will, or misunderstanding instructions, causing the wrong wording to be included.
The applicant for rectification must show:
- What the testator’s true instructions were.
- That the will fails to carry out those instructions due to the error.
- That the error was either clerical or a failure to understand instructions.
Rectification is not possible to change a will merely because the testator changed their mind after execution.
Worked Example 1.4
A will gift is intended for "my niece Jane," but Jane’s correct name is Joan. Would rectification succeed?
Answer:
If evidence shows the testator intended "Joan" and that "Jane" was inserted by clerical error, the court may order rectification to correct the name.
Incorporation by Reference
A will may incorporate another document by clear reference, making that document part of the will if it existed at the time of execution. Courts require strict compliance with this rule to ensure testamentary intent and prevent fraud.
Key Term: incorporation by reference
Refers to a will making a document it describes part of the will, provided certain conditions are met.
Use of Extrinsic Evidence—Statutory Rules
Under statute, courts permit:
- Consideration of the surrounding circumstances at the time the will was made, to clarify meaning.
- Admission of evidence of the testator’s declarations only in cases of ambiguity or uncertainty.
The Role of Construction, Rectification, and Evidence—Putting It Together
Courts read the will as a whole, relying first on the natural meaning of the words and the internal context. Only if the meaning is ambiguous, meaningless or a drafting error occurred does the court look at extrinsic evidence or consider rectification to match what the testator truly wanted.
Worked Example 1.5
A clause reads "my house to my friend Anna, if she returns from Australia within 2 years of my death." Anna returns 30 months later. Does Anna inherit?
Answer:
No; courts will not rewrite the contingency period, and only rectify clear errors. As there was no error and Anna did not meet the condition, the gift fails.
Key Point Checklist
This article has covered the following key knowledge points:
- The court's primary goal in interpreting a will is to determine the testator's intentions as expressed in the document.
- Wills are generally construed as "speaking from death," unless otherwise provided.
- Technical and ordinary words are given their usual legal or grammatical meaning unless the context suggests a different interpretation.
- Ambiguity may be resolved by construction; extrinsic evidence or rectification is only allowed in limited, statutorily defined situations.
- Rectification is limited to cases of clerical error or failure to understand instructions, not mere changes of mind.
- Incorporation by reference and admission of extrinsic evidence must follow strict requirements to have effect.
Key Terms and Concepts
- construction of a will
- rectification
- extrinsic evidence
- testator
- the will speaks from death
- clerical error
- incorporation by reference