Wills and Intestacy - The interpretation of wills

Learning Outcomes

This article examines the interpretation of wills for SQE2, covering:

• The court’s objective in construction and how intention is derived from the language read as a whole, applying the armchair principle and limits of admissible background
• Operation of the “will speaks from death” rule in s 24 Wills Act 1837 for property, contrasted with identifying persons by reference to execution or express wording
• Treatment of technical and non‑technical terms; resolving misdescription and equivocation through internal context
• Distinguishing patent and latent ambiguities and the gateways for admitting extrinsic evidence, including intention, under s 21 Administration of Justice Act 1982
• The scope of rectification under s 20 AJA 1982 for clerical error or failure to understand instructions, evidential requirements, and the six‑month time limit with judicial discretion
• Incorporation by reference: existence, identification, and limits of referenced documents
• The effect of statutory provisions on construction outcomes, including s 18A (divorce/dissolution), s 33 (substitution for issue), and s 33A (forfeiture/disclaimer deemed predecease)
• Applying these rules to realistic scenarios, selecting between construction, extrinsic evidence, and rectification, and advising on practical remedies

SQE2 Syllabus

For SQE2, you are required to understand the principles and statutory rules governing the interpretation of wills, including construction, rectification, and the use of extrinsic evidence, with a focus on the following syllabus points:

• How courts ascertain and give effect to the testator’s intentions as expressed in the will, with the instrument read as a whole.
• The “armchair” approach and the limits of admissible background context.
• The operation of s 24 Wills Act 1837 (the will speaks from death) for property, and the position for identifying persons described in the will.
• Construction of technical and non‑technical terms; resolution of misdescription and equivocation.
• Patent and latent ambiguities; when they arise and how they are addressed.
• The circumstances in which extrinsic evidence (including evidence of intention) is admissible under s 21 Administration of Justice Act 1982.
• Rectification under s 20 Administration of Justice Act 1982: scope, evidential burden, and time limits.
• Incorporation by reference: requirements and limitations.
• Statutory effects relevant to interpretation: divorce/dissolution (s 18A Wills Act), substitution for issue (s 33 Wills Act), and treatment of forfeiture/disclaimer (s 33A Wills Act).
• The difference between construction and rectification, and appropriate remedies when text fails to reflect instructions.

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.

1. In what circumstances will a court permit rectification of a will?
2. What does “the will speaks from death” mean in the context of interpreting testamentary gifts?
3. When can extrinsic evidence of the testator’s intent be used in interpreting a will?
4. 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.

Courts adopt an objective approach, often described as reading the will “from the armchair” of the testator: the court may place itself in the position of the testator, considering admissible surrounding circumstances. That does not permit rewriting the instrument to accord with perceived fairness or an unexpressed wish.

Key Term: armchair principle
The approach of construing the will by considering admissible surrounding facts known to the testator, to understand the language used.

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. Where the same term appears in different places, its meaning may be influenced by the internal context and the structure of the will (for example, how specific and residuary gifts interact).

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. If a will employs non‑technical descriptions (“my money”, “my home”), the court will consider whether the term is used colloquially or intended as a legal classification (for example, “personal estate” has a technical meaning distinguishing personalty from realty).

Misdescription can arise where a word or phrase fits multiple candidates (equivocation), or where no item or person exactly answers the description. In such cases, construction proceeds with all contextual aids within the document before turning to extrinsic evidence under the statutory gateway.

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 if construction cannot single out one property.

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 (s 24 Wills Act 1837). This means gifts refer to the property as owned at death and to property descriptions as they apply then (for example, the current car or current investments), even if assets changed after execution.

As regards persons described, courts often determine identity by reference to the date of execution (absent contrary intention), applying the testator’s language to those who then answer the description. This distinction reflects that s 24 addresses property, not people. The will’s context can, however, indicate an intention to identify beneficiaries at death (“such of my daughters who are living at my death”), in which case that direction governs.

Key Term: the will speaks from death
The principle that a will is construed with reference to property existing at the testator's death (s 24 Wills Act 1837), unless otherwise stated; descriptions of persons generally refer to those who fit at execution unless the will specifies a different time.

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 (the car owned), treating colour as descriptive rather than essential unless the will indicates the colour was critical. If two cars exist at death and only one matches, the match controls.

Worked Example 1.3

A will leaves "to my daughters in equal shares." The testator had one daughter at execution and later became guardian to a step‑daughter, and then had a second child before death.

Answer:
Absent contrary indication, “my daughters” would generally be construed as the testator’s own daughters, determined by the language at execution. The later‑born daughter would be included if the term is read naturally to mean daughters as a class, and the gift is to those living when distribution occurs (often at death). A step‑daughter is not included unless the will uses language including step‑children.

Resolving Ambiguities and Uncertainties

Ambiguity arises either on the face of the instrument or when the language is applied to facts. The court first attempts resolution by construction, considering the document as a whole. If ambiguity persists, statutory rules govern when external evidence may be admitted.

Key Term: patent ambiguity
An ambiguity apparent on the face of the will (for example, inconsistent amounts, two different names in the same clause).

Key Term: latent ambiguity
An ambiguity that arises only when applying the will to external facts (for example, two people or two properties answering the same description).

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 strive to resolve it by construction; extrinsic evidence may be admissible under s 21 AJA 1982 if the words are ambiguous on their face or meaningless. If meaning cannot be determined, the gift may fail for uncertainty.
• Latent ambiguity (apparent only when applying the will in practice): The court may admit extrinsic evidence to attempt to resolve the ambiguity, including evidence of the testator’s intention, provided it does not contradict clear language or rewrite the will.

Examples of latent ambiguity include equivocation—where the words equally fit more than one person or thing.

Worked Example 1.4

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. If evidence remains indeterminate, the gift could fail for uncertainty or be divided if the context clearly indicates both were intended.

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. The condition precedent failed, and the gift does not take effect. Rectification would not be available; the wording accurately reflects a deliberate condition.

Extrinsic Evidence

Legislation now permits extrinsic evidence, including statements by the testator, to interpret a will in certain circumstances. Section 21 Administration of Justice Act 1982 allows such evidence:

• Where any part of the will is meaningless.
• Where the language used in any part is ambiguous on its face.
• Where evidence (other than evidence of the testator’s intention) shows that the language is ambiguous in light of surrounding circumstances.

Where s 21 applies, extrinsic evidence, including evidence of the testator’s intention, may be admitted to assist interpretation. The focus remains on clarifying meaning; extrinsic evidence cannot be used to contradict clear language or to vary the will’s substantive effect.

Worked Example 1.6

A will leaves "all to mother." The testator’s mother had died years before execution, and the testator often referred to his wife as “mother” in family life.

Answer:
On its face the phrase is clear, but in light of the circumstances the description does not fit anyone alive at execution. Under s 21 AJA 1982 the court may admit evidence that the testator habitually called his wife “mother”, permitting the gift to be construed as to the wife.

Exam Warning

Care is needed to distinguish between using background circumstances to understand words and using evidence to alter the will. Section 21 permits admission of extrinsic evidence—including intention—only within the specified categories. It is not a licence to revise clear provisions.

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 (s 20 Administration of Justice Act 1982).

Key Term: clerical error
A mistake in reading, writing, copying or transcribing the will (including figures and names), or inserting or omitting wording contrary to instructions.

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 cannot be used to change a will merely because the testator changed their mind after execution, nor to correct mistakes of law (for example, a drafter misunderstanding how a clause operates where the wording accurately reflects the instructions). Applications should be made within six months from the grant of probate, but the court has discretion to permit late applications where justice requires.

Evidence is often required from the drafter (and contemporaneous notes) and, if available, from drafts and correspondence. The court will be cautious where altering amounts or substituting beneficiaries, but may rectify names, digits, or omitted words if the evidential threshold is met.

Worked Example 1.7

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, rectification may be granted to correct the name.

Worked Example 1.8

The testator instructed the solicitor to leave “£100,000 to my brother” but the will states “£10,000 to my brother”.

Answer:
If contemporaneous attendance notes and drafts show the intended figure was £100,000 and “£10,000” arose from a transcription error, rectification can adjust the figure to reflect instructions.

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
Incorporation occurs where the will refers to a document as existing and identifies it with certainty; the document must be in existence at execution.

The will should describe the document (for example, “the list of chattels signed by me and dated [date] kept in my desk”), and the document must be identified with certainty and exist when the will is executed. A general description (“the list I will write”) or a document created only after execution cannot be incorporated.

Worked Example 1.9

The will says, “I leave items to be selected from the list given to my executors,” but the list was compiled a week after the will was signed.

Answer:
Incorporation fails; the document did not exist at execution. Unless the will independently disposes of items (for example by conferring a power of selection within limits), the intended scheme cannot take effect by incorporation.

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 (the armchair principle).
• Admission of evidence of the testator’s declarations only in cases of ambiguity or meaninglessness specified by s 21 AJA 1982.
• Evidence to resolve equivocation or misdescription where words fit more than one subject.

Evidence of intention is powerful but must be approached cautiously; it cannot be used to contradict clear words or to import fresh gifts not found in the will’s language.

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. In practice:

• Construction addresses what the wording means.
• Rectification addresses whether the wording should be changed because it fails to reflect instructions due to clerical error or misunderstanding.

Worked Example 1.10

“I give £5,000 to my spouse.” The marriage was later dissolved by decree absolute before the testator’s death.

Answer:
The gift is treated as revoked under s 18A Wills Act 1837 (the former spouse is deemed to have died on the date of the divorce for testamentary purposes). Construction of the clause is straightforward; statutory effect removes the gift.

Worked Example 1.11

“I leave £20,000 to such of my children as are living at my death.” One child predeceases the testator leaving two children.

Answer:
Section 33 Wills Act 1837 provides for substitution of issue only for gifts to the testator’s children or remoter descendants where the child predeceases, unless the will shows contrary intention. The predeceased child’s issue will take that share unless excluded by the will. If instead the phrase were “my nieces,” s 33 would not apply.

Worked Example 1.12

A gift is made to a beneficiary who later unlawfully kills the testator. The will contains no substitution clause.

Answer:
The forfeiture rule prevents the killer from benefiting; s 33A Wills Act 1837 treats a person who forfeits (or disclaims) as having died immediately before the testator for the purposes of substitution provisions in the Act, so the killer’s issue may take by substitution if s 33 applies and no contrary intention is shown.

Worked Example 1.13

The will directs, “I give £10,000 to my friend A, and I leave the items set out in the schedule attached,” but a different schedule was accidentally attached at signing.

Answer:
Construction will identify what “the schedule attached” means; if ambiguous or meaningless, s 21 AJA 1982 may admit extrinsic evidence (for example, drafts and notes) to identify the intended schedule. If the wrong schedule was attached due to clerical error, rectification may be sought to correct the attachment.

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" as to property (s 24 Wills Act 1837), unless otherwise provided; identification of persons can turn on the language at execution unless a different time is specified.
• Technical and ordinary words are given their usual legal or grammatical meaning unless the context suggests a different interpretation; misdescription and equivocation are addressed by construction and, where appropriate, extrinsic evidence.
• Patent and latent ambiguities are distinguished; extrinsic evidence or evidence of intention is admissible under s 21 AJA 1982 in defined circumstances.
• Rectification (s 20 AJA 1982) is limited to cases of clerical error or failure to understand instructions; applications should be made within six months from the grant, subject to the court’s discretion.
• Incorporation by reference requires a clearly identified document in existence at execution; later documents cannot be incorporated.
• Statutory provisions may affect interpretation outcomes, including s 18A (divorce), s 33 (substitution for issue), and s 33A (forfeiture/disclaimer deemed predecease).
• Construction determines meaning; rectification corrects drafting defects. The court will not rewrite a will to meet a perceived general intention.

Key Terms and Concepts

• construction of a will
• rectification
• extrinsic evidence
• testator
• the will speaks from death
• clerical error
• incorporation by reference
• patent ambiguity
• latent ambiguity
• armchair principle