Amiee Shannon Steed

John successfully acted for the defendant in the case of Amiee Shannon Steed (a Child by her Litigation Friend, Marilyn Joy Winn) in a two-day will construction trial on 16th and 17th March 2016 before Mr Justice Newey in the Chancery Division of the Bristol District Registry.

The defendant was the testator’s father and the sole executor of the estate under a homemade Will which contained only one operative provision stating:

“I…,give authority to my father to dispose of all my possessions and affairs as he feels appropriate.”

By the time of the trial both parties acknowledged that the will was sufficiently ambiguous for extrinsic evidence to be brought into the construction exercise in accordance with section 21 of the Administration of Justice Act 1982. However the claimant’s case was that such evidence was of little if any assistance to the court.

The issues for determination by the court were:

1. Did the wording of the will show an intention by the testator to leave his estate as an absolute gift to his father?
2. Alternatively, did the wording of the will show an intention to create a trust?
3. Would either a gift or a trust fail on the basis that there had been an impermissible delegation of testamentary power as per Chichester Diocesan Fund and Board of Finance Inc v Simpson [1944] AC 341?

It was not disputed that, if the court found the will showed an intention to create a trust, then the trust failed due to the uncertainty over the objects of the trust and/or due to administrative unworkability. In that case the testator’s father would hold the estate on trust in his capacity as executor for the claimant, as the person who would benefit under the intestacy provisions.

Mr Justice Newey determined that the will contained an absolute gift to the testator’s father and was not to be construed as showing an intention to create a trust. The court found assistance from the extrinsic evidence of the persons who had witnessed the will, who had questioned the testator about his intentions for his estate. The court reasoned that the natural meaning of the words did not show an intention to impose any binding constraint upon the father, which was supported by a number of authorities, including Paice v Archbishop of Canterbury (1807) 14 Ves 364 and Gibbs v Rumsey (1813) 2 Ves & Bea 294. Of particular relevance was the case of Re Howell [1915] 1 Ch 241, 244, in which Lord Cozens-Hardy M.R. stated: “I know of no case which in any way applies to a will like this, in which there was no trust declared either expressly or by implication prior to the gift of residue to the executor, and there was a sole executor, and it was held that the executor did not take beneficially.“

As to the issue of impermissible testamentary delegation, the court considered that any rule that may exist against the delegation of testamentary powers would not be relevant in relation to a gift to an absolute beneficiary. The court provided an example whereby a husband was able to leave his wife an absolute gift of his estate in the expectation that she would then decide how best to benefit their children. It would not be an impermissible delegation of testamentary powers for the husband not to specify how his wife must divest herself of the estate as between the children. Consequently, there was no question of there being an impermissible testamentary delegation in the case before the court. The court did not need to resolve the defendant’s submission that Hoffmann J.’s critical analysis in the case of Re Beatty [1990] 1 WLR 1503, 1507 had not reduced the significance of the rule against the delegation of testamentary powers said to arise from Lord Simons’ speech in Chichester Diocesan Fund and Board of Finance (Incorp) v Simpson [1944] AC 341, 371.