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Ally Tow
Ally Tow,
SENIOR ASSOCIATE - CHARTERED LEGAL EXECUTIVE
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To be a Niece or Nephew or not – That is the question? 
19 October 2020

If your will provides for a class of beneficiaries rather than individually named beneficiaries it is important to ensure that you adequately identify the intended class of recipients of the gifts so as to ensure that your estate passes in accordance with your wishes. In the recent case of Re the estate of Peter Henry Wales Wales and Another v Dixon and Others [2020] the claimants, Mr John Wales and Mr Andrew Wales (“the executors”), the executors of the estate of the late Peter Henry Wales (“Peter”) asked the court to determine an issue of construction in relation to Peter’s will.

The facts

Peter died on 17 February 2015. He was a widower and had no children. By clause 7 of his will Peter gave his residuary estate to “such all of my nephew’s and niece’s children”. The issue for the court to determine was whether Peter’s residuary estate fell to be divided between the 1st to 7th defendants to the claim who were his nieces and nephew’s children by blood (“the blood relatives”) or the blood relatives and the 8th to 15th defendants who were the children of Peter’s nieces and nephews by affinity (“the affinity relatives”).

The net value of Peter’s estate (before any costs were deducted) amounted to £624,062.00. Accordingly, a 1/7 share was worth £89,151.71 and a 1/15 share £41,604.13.

Family relationship

Peter was survived by a brother, John and a sister, Josephine. John had a son and a daughter himself as did Josephine. Suzanne, John’s daughter also had a son and a daughter. John (junior), Josephine’s son had a son and two daughters and Fiona, Josephine’s daughter had a son and a daughter. Peter was therefore survived by seven children of the blood relatives.

Wendy, Peter’s late wife, had a brother, Roy and a sister, Celia. Roy had three sons and Celia had a son and a daughter. Two of Roy’s sons, John (Brackpool) and Haydn both had a son and a daughter. Paul, Celia’s son, had pre-deceased Peter but was survived by his son, Ben. Carole, Celia’s daughter, had three sons. Peter was therefore survived by eight children of the affinity relatives.        

Previous wills

In order to give consideration as to the construction of Peter’s will it was necessary for the court to review his previous wills together with those of Wendy who had died on 23 April 2008.

Peter and Wendy both made wills in 1967, 1988 and 1997. By their 1967 wills they left their entire estate to each other or, in the event that either pre-deceased the other to their children or if they had no children to charities, subject to a gift of £100.00 to each of the children of Celia, Roy, John and Josephine.

By his will dated 10 June 1988 Peter left his estate to Wendy and if she did not survive him, if his mother was living at the date of his death, he gave £30,000.00 to John and Josephine in equal shares, the contents of his house to Wendy’s niece, Carole. He also gave £3,000.00 to each of the children of John, Josephine and Roy as well as Wendy’s nephew, Paul. He also gave £2,000.00 to each of Carole’s three sons and left the residue of his estate to two named charities. Wendy’s will was in similar terms and included a legacy to Roy’s children as well as John and Josephine’s children.

By his will dated 19 November 1997 Peter again left his estate to Wendy and if she did not survive him, he left his estate to be divided in equal shares between John and Josephine’s children and Wendy’s brother’s three children. In the event she survived Peter, Wendy’s will likewise provided for her estate to be distributed between the same children.

On her death, Wendy’s entire estate passed to Peter. Some eight months after Wendy’s death, Peter then made a further will dated 22 December 2008.

Current will

By his last will, Peter appointed his brother, John and nephew, Andrew as his executors and trustees. He made gifts of money of between £500.00 and £1,000.00 to six charitable organisations. As to the residuary of his estate, clause 7 of his will provided:

“I give my Residuary Estate to such all of my nephew’s and niece’s children living at my death … and if any of my nephew’s and niece’s children shall fail to obtain a vested interest leaving issue who survive me … then such issue shall take …”.

The court proceedings

The court’s decision turned mainly on the interpretation of the meaning of the words “nephew” and “niece”. In Re Dauost [1944] Vaisey J stated:

“… There seems no doubt at all that the strict and proper meaning of the word “nephew” is the son of a brother or sister; and similarly, “niece” means daughter of a brother or sister. But the meaning of each of these words is, in my judgment, susceptible of extension, having regard to the context and circumstance of the case, in two directions. First of all, the word may describe the child of a brother-in-law or of a sister-in-law; and, in the second place, I think that “nephew” is often used to indicate a niece’s husband and “niece” is often used to describe the wife of a nephew…”

In considering this case, Master Teverson said the previous wills of Peter and Wendy demonstrated that they had made mirror-like wills by which, whichever of them was the survivor, left a bequest or share of residue to members of both their family and their spouse’s family.

The court also heard evidence from Haydn, Wendy’s brother’s son, that following her death the family continued to have contact with Peter, visiting him at least once a year and telephoning him monthly. His evidence to the court also sought to suggest that Peter wanted to extend the scope of class of beneficiaries who were to inherit to include Celia despite the fact that Wendy had had a falling out with her some years before.

There was no extrinsic evidence which would explain why Peter should have intended to change his will so as to exclude all of Wendy’s family. Looking at the surrounding circumstances, Master Teverson said it was clear to him that by referring to “such all of my nephew’s and niece’s children” Peter was intending to include nephews and nieces by affinity as well as by consanguinity. Master Teverson reached this conclusion for the following reasons:

  • a marriage with Wendy lasting 46 years;
  • the prior wills of both Peter and Wendy;
  • the passing of the whole of Wendy’s estate to Peter;
  • the absence of any extrinsic evidence as to why Peter may have wanted some eight months after Wendy’s death to exclude her family; and
  • the continuing contact between Peter and Wendy’s family in the months after her death.

Finally, he considered the manner in which Peter’s instructions were taken for the preparation of the will. The instructions were taken by telephone with the draft will being prepared and sent out to Peter the same day. He said the striking feature of the communications between Peter and the Co-Operative Legal Services (“the Co-Op”) was Peter’s apparent complete lack of focus on clause 7 as opposed to the money bequests under clause 4 coupled by the complete lack of any attempt to establish by name or parent who was intended to receive a share of his residue.

This, said Master Teverson illustrated the dangers of taking instructions by telephone from an elderly widower without sight of his prior will or knowledge of his family tree. He also stated that he considered clause 7 to be poorly drafted. It contained grammatical and punctuation errors as well as the failure to identify by name or parent or family the intended recipients of the gift.

Master Teverson considered that the manner in which Peter’s instructions were taken and the poor quality of clause 7 enhanced the scope for giving the words an extended meaning when interpreted against the surrounding circumstances known to Peter.

Judgment

In all the circumstances, Master Teverson concluded that the residuary estate fell to be divided equally between the 15 defendants, i.e. both the blood relatives and the affinity relatives.

Conclusion

Given Peter’s death, sadly it is a reality that no-one will ever know for certain whether the court’s determination represented Peter’s actual wishes and whilst each case would by necessity turn on its own individual facts, this case highlights the importance of taking clear steps to identify who it is that you wish to inherit your estate.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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