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SECOND DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Justice Clerk
Lord Johnston
Lord Philip
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[2006] CSIH 35
P684/05
OPINION OF THE COURT
delivered by LORD JOHNSTON
in
PETITION
of
WILLIAM JAMES BILSLAND
FORSYTH and ANOTHER
Petitioners;
against
NATIONAL KIDNEY RESEARCH
FUND and OTHERS
Respondents:
for
DIRECTIONS
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Act: Lindsay; MBM Commercial LLP (Petitioners)
Alt: Agnew of Lochnaw, Q.C.; Anderson Strathern (Respondents)
13 June 2006
[1] This
petition is brought by the executors of the late Margaret Bilsland (the
"testator") who died on 25 April 2001 leaving a will dated 30 January 1998 and
codicils to that will dated 6 April 2001 and 12 April 2001, all registered in
the Sheriff Court books of South Strathclyde, Dumfries and Galloway on 22
August 2001. The respondents are various
charities named in the will.
[2] The
testator had no children and no siblings, although there were known to the
executors to be at least three blood relations but in name only, they all being
untraceable. Nevertheless they would
constitute the heirs in intestacy if that issue were to arise. However, the testator had a number of persons
whom she referred to as nephews and nieces, although they were in fact blood
relations of her husband and the relevant list is to be found in an appendix to
the petition ("the relevant beneficiaries").
[3] Clause
Three of the will contains certain pecuniary legacies to named individuals and
a church. Clause Four of the will
contains specific legacies to named individuals. Clause Five is in the following terms:
"Five (one) I
direct my executors to make over two fifths of the residue of
my estate to such of my nephews and nieces as shall survive me
equally among them. And I declare that
in the event of any of my said nephews and nieces failing to survive me I
bequeath the share which he or she would have taken on survivance to the
beneficiaries named in clauses Five (two) to (nine) hereof in proportion
to the share therein specified.
(two) to The National
Kidney Research Fund, Department WTC,
Forty two
Lower Marsh, London, SE1 7RG, one
tenth.
(three) to Cancer
Research Campaign, Fifteen Lynedoch Street,
Glasgow, G3 6ES, one
tenth.
(four) to the Chest,
Heart and Stroke Association, Whitecross
Street,
London, EC1Y 8JJ, one
tenth.
(five) to Arthritis
Care, Five Grosvenor Crescent, London, SW1X
7ER, one tenth.
(six) to the
Abbeyfield Society, Scotland, one
twentieth.
(seven) to Yorkminster
Fund, Church House, Ogleforth, York, one
twentieth
(eight) to the National
Trust, Legacies Unit, Thirty six Queen Anne's
Gate, London, SW1H 9AS, one twentieth.
(nine) to the
National Trust for Scotland, Five
Charlotte Square,
Edinburgh, EH2 4DU, one
twentieth.
And I
declare that in respect of the above bequests numbers two to nine, the
signature of the Treasurer then in office shall be sufficient discharge to my
executors."
The question posed on behalf of the
petitioners is in the following term:
"Whether
the petitioners as executors may distribute the part of the residue of the
estate of Mrs Bilsland not bequeathed in Clause Five (one) of the Will to the
beneficiaries referred to in Clause Five (two) to (nine) of the Will in the
manner there specified or must distribute that part of the residue as intestate
estate?".
[4] It
has to be observed at once that paragraph (one) of clause Five
deals with two fifths of the residue of the testator's estate. There is no further specific mention of
residue in the remainder of the clause, nor indeed with regard to the remaining
estate not dealt with in paragraph (one).
However, as a matter of fact an addition of the fractions used in the
remaining part of the clause, i.e. (two) to (nine), results in the sum of three
fifths, which, if added to the two fifths in paragraph (one), constitutes, as a
matter of arithmetic, the whole of the residue of the estate.
[5] It
is to be observed that the legacy of two fifths to the relevant beneficiaries
in paragraph (one) is subject, in each case, to a survivance clause which, in
the event of failure in any case executes a destination over of the relevant
share in favour of the named charities in the nominated proportions. As a matter of fact we were informed that all
the relevant beneficiaries are still in life and therefore the destination over
has not operated. It is to be noted also
at this stage that counsel for the respondents did not make any claim to the
two fifths with which paragraph (one) is concerned.
[6] Mr.
Lindsay appearing for the executors took, quite properly, a neutral position
but informed us that the executors had received conflicting advice as to how
clause five as a whole and in particular the claims of the charities in
paragraphs (two) to (nine) should be dealt with. On the one hand it appears that the executors
had been advised that the charitable beneficiaries in paragraphs (two) to (nine)
only took any right to the estate in the event of the survivance provision
operating in paragraph (one) and in the event of that not happening the purported
legacies in paragraphs (two) to (nine) could not operate and the remaining
three fifths of the estate had to fall into intestacy.
[7] On
the other hand Mr. Lindsay informed us that other advice suggested that properly
construed the legacies in paragraphs (two) to (nine) comprising three fifths of
the estate should be construed as a number of free-standing legacies of the
residue and therefore payable to the charities in question, in the appropriate
proportions.
[8] We
should record that we were referred to Blair
v Blair 1849 12 D. 97, Auld's Trustees 1933 S.C. 176 and Colin v Hutchison 12 R. 947.
[9] We
consider that this matter is not determined by authority beyond the general
propositions to be found in Auld's
Trustees in respect of the presumption against intestacy. The matter has to be determined intrinsically
from the terms of the will against that background.
[10] Sir Crispin Agnew, Q.C., appearing for the respondents adopted
the second of the two positions that had been laid before us by Mr. Lindsay on
behalf of the executors, namely, that properly construed, he having already
indicated he made no claim to the initial two fifths of the residue, the bequests
in paragraphs (two) to (nine) which together would amount to three fifths of
the residue should be treated as freestanding bequests of the respective shares
of the residue. He accepted this did
involve writing in to each of the relevant paragraphs the phrase "of the residue".
[11] We are in no doubt that the position put forward by Sir Crispin
is correct.
[12] The presumption against intestacy is a very strong one and from
an overall study of the testator's will it seems to us that she clearly
intended to dispose of the whole of her estate.
The fact that the fractions to be found in each of the provisions of
clause Five, including paragraph (one), on being added together account for the
whole of the residue is highly indicative of the fact that the testator
intended to dispose of the whole of the residue of her estate in the relevant
clause. It does not in our opinion do
violence to the language of the will simply to read in, whether by implication
or expressly, in relation to each of the relevant charitable bequests in clause
Five the words "of the residue". The
fact that intestacy is inevitable unless the survivance destination over
operates in the terms of paragraph (one) militates strongly against any other
construction.
[13] In these circumstances we are clearly of the view that clause Five was designed by the testator, and clearly expresses her
intention as such, to deal with the whole of the residue of her estate not
otherwise dealt with by the previous clauses in the will. The destination over in paragraph (one) was
clearly designed to make sure that if that bequest failed in any particular
respect the money would thereafter proceed to the
relevant charities in the appropriate proportions. It was not designed to trigger the legacies in
paragraphs (two) to (nine) but merely
to be an addition to them in certain circumstances.
[14] In these circumstances, and for these reasons, we will answer
the question posed in the petition in the affirmative in relation to the first
alternative and the second alternative in the negative.
