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Report No. 110

Chapter 16

Construction of Wills (Sections 74 to 111)

I. Introduction

16.1. Scope of Chapter and essence of the process of construction.-

Detailed rules for the construction of wills are contained in sections 74-111. The scheme of these sections will be better understood if certain general aspects are borne in mind. In the construction of documents recording the voluntary acts of parties to a legal transaction, three elements generally play an important part.

These are-the intention of the author (or authors) of the instrument, the terms of the instrument as recording that intention, and the external reality to which that document is intended to apply. Since a document is supposed to record the intention of its author and to operate on persons or facts outside the instrument (the external reality), the relevance of all these three is obvious. The document is the medium through which the author speaks, so as to affect the external reality.

16.2. So long as the three are in harmony with one another, no question of construction of the document would, in general, arise. The document speaks for itself, and if it is faithful to the intentions of its author, as well as to the external reality, effect can be easily given to it-assuming, of course, that no special rules of law or public policy have been infringed by its terms. But where harmony of the nature referred to above is wanting, a court of law concerned with the document is faced with the problem-the problem of seeking that harmony.

In its efforts to do so, the three elements mentioned above play a part. But the relative importance of each is not the same. In general, the law gives the pride of place to the first element-intentions of the author, if they can be ascertained with reasonable certainty. The second element-the text of the document-may, if necessary, be moderated in the light of the result of such search by the Court of the intentions of the testator.

Similarly, occasion may arise for moderating that element, if the external reality so demands. This, then, is the essence of "construction", namely, to ascertain the intention of an author and to moderate everything else according to that intention where the intention can be ascertained with reasonable certainty. The Court creates a "construct" not entirely of its own, but the result of its search for the intentions of the author.

16.3. General rule.-

The general rule is that a document is to be construed according to its ordinary meaning, since the court is to give effect to what the author of the document has expressed in it.

16.4. Imperfections inherent in a language.-

Language, however, has its limitations. It is a system of symbols. No draftsman, whether of legislation or of private documents, can rise above the imperfections inherent in language as a medium of thought. In order to prevent the will of the testator from failing by reason of such imperfections, the legislature has considered it proper to insert certain rules for the construction of wills, to be found in sections 74-111.

The thirty-seven sections relating to the construction of wills may, at the first sight, appear to be heterogeneous in character, but a common thread can be discerned as running through most of them, namely, that the intention of the testator is paramount and that all reasonable efforts should be made to ascertain that intention and to give it due effect.

It is this principle which finds expression in the very first section in the Chapter-section 74-which provides that "it is not necessary that any technical words or terms of art be used in a will, but only that the wording be such that the intentions of the testator can be known therefrom". It is, again on this principle that section 75 imposes on the court the duty of inquiries to determine questions as to the object or subject of the will.

Again, it is on this principle that section 76(1) provides that where the words used in a will to designate or describe a legatee or a class of legatees sufficiently show what is meant, an error in the name or description shall not prevent the legacy from taking effect.

The specific provisions as to the supplying of omissions in wills (section 77), the rejection of erroneous particulars in a description of the object (section 78), the prohibition against rejecting an erroneous words which can be given effect to (section 79), and the admission of extrinsic evidence in case of latent1 ambiguities (section 80), are all expressive of the legislative policy referred to above, and make it clear that what matters is the intention of the testator, which must not be allowed to be thwarted by this or that trivial defect in the expression of that intention.

It is, finally, for this reason that under section 83 words may be understood in a restricted or wider sense, where it can be collected from the will that the testator meant to use them in that sense.

1. Misprinted as 'patent' in the marginal note to section 80.

16.4. Legislative policy of giving effect to the will.-

Since the legislative policy is that effect is to be given to the will, sections 84, 85, 87 and 88 contain detailed rules intended to implement that policy. Of two possible constructions of a clause, that which gives some effect to the clause is preferred (section 84); no part of the will is to be rejected as destitute of meaning, if a reasonable construction can be placed upon it (section 85).

Where effect cannot be given to the testator's intention to the full extent, effect is to be given to it as far as possible (section 87). Of two or more inconsistent clauses in a will, the last prevails (section 88).

It is only where the will or bequest is not expressive of any definite intention that is void for uncertainty (section 89).

All this is, in fact, faithful to the very definition of "will",1 as given in the Act: a "will" means the legal declaration of the intentions of testator with respect to his property which he desires to be carried into effect after his death.

Another principle, now well established, is that a will speaks from the date of death of the testator (sections 104 and 105-111).

Rules for construing particular kinds of bequests are also needed, either to solve an apparent internal inconsistency in testamentary dispositions (section 101) or in order to work out the will in the light of subsequent events or for other reasons. Although such fastidiousness on the part of the legislature may appear to be productive of complexity, in practice it leads to smoothness of working.

1. Section 2(h).

16.5. Grouping of the rules.- The rules in the Chapter fall under the following groups:

(a) Language of wills-section 74.

(b) Inquiries by the court-section 75.

(c) Misdescriptions, deficiencies and uncertainties-sections 74-89.

(d) Rules implementing the principle that will speaks from the date of death of the testator-sections 90, 104 and 105-111.

(e) Rules based on the principle that the will extends to all property over which the testator has a disposing power-section 95.

(f) Rules for construing a power of appointment conferred by a will-section 92.

(g) Rules concerned with the extent of interest intended to be conferred by a will-sections 91 to 95.

(h) Bequest in the alternative-section 96.

(i) Bequest to a class of persons-section 93 and also section 111.

(j) Construction of certain terms indicative of relationship-sections 99100.

(k) Two bequests to the same person-section 101. (1) Residuary legacies-sections 102-103.

(m) Vesting of legacies given in general terms-section 104.

(n) Lapse of legacies-sections 105-111.

16.5A. Extrinsic evidence in England-recent reform.-

In England section 21 of the Administration of Justice Act, 1982, implementing the recommendations of the Law Reform Committee,1 provides, in effect, for the admission of extrinsic evidence (including evidence of the intention of the testator) to assist in the interpretation of wills. This section applies to a will in the following cases enumerated in section 21(1):

"(a) in so far as any part of it is meaningless;

(b) in so far as the language used in any part of it is ambiguous on the face of it;

(c) in so far as evidence, other than evidence of the testator's intention, shows that the language used in any part of it is ambiguous in the light of surrounding circumstances."

After these introductory observations, we proceed to a consideration of the sections proper.

1. Reform Committee, Report on the Interpretation of Wills, (1973), Cmd. 5301.



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