MR. JUSTICE NUGEE:
- I have before me a claim to construe a Will or in the alternative to rectify it, or in the further alternative for it to be admitted to probate with certain words omitted.
- The testator, Mr. Michael Crowley-Milling (whom I will call "Mr. Crowley-Milling") was born in 1917 and died aged ninety-five on 24th December 2012. He had married his wife, Gladys "Gee" Dickson, in 1958 and she had pre-deceased him in 2005. They had no children. He had a younger brother, Dennis, who was a fighter pilot during the war and rose to become Air Marshall Sir Dennis Crowley-Milling. He had died in 1996, leaving two daughters, Mrs. Lorna Joy Robinson, who is the third defendant, and Mrs. Gillian Masterman. Mrs. Masterman herself pre-deceased Mr. Crowley-Milling leaving two children, James and Rebecca Masterman, the fourth and fifth defendants respectively. Those three defendants (Mrs. Joy Robinson and James and Rebecca Masterman) are therefore the next of kin of Mr. Crowley-Milling who would be entitled to his estate on his intestacy.
- Mr. Crowley-Milling left two Wills: a Swiss Will dated 13th February 2006 and an English Will dated 19th October 2009. No question arises over the Swiss Will. It is confined to Swiss assets and at the date of his death Mr. Crowley-Milling's only remaining Swiss asset was a bank account with UBS with over half a million pounds in it. Under his Swiss Will that passed to the Royal Society, a well-known charity. Under his English Will of 19th October 2009 (which I will call "the 2009 Will") he left certain legacies that I will come to in due course, but the residuary beneficiary was again The Royal Society. Among the assets at the date of his death were substantial funds held in various offshore accounts, namely, in the Isle of Man, over a quarter of a million pounds with an account at Barclays Bank, and, in Jersey, over £600,000 in an account with Santander. If they pass under the Will then after the payment of legacies, the balance of these assets will pass to the Royal Society as the residuary beneficiary. However, clause 1 of the 2009 Will reads as follows:
"I hereby revoke all former Wills and testamentary dispositions made by me with the exception of my Swiss Will dated 13th February 2006 and
I declare that:
(a) I am domiciled in England.
(b) this Will and any Codicil to it shall be construed and take effect according to English law;this Will and any Codicil to it shall extend only to property of mine which is situated at my death in the United Kingdom."
- Mr. Richard Wilson, who appears for the Royal Society, accepts that on any normal interpretation of the words "the United Kingdom" that provision would have the effect that it would not include the accounts in the Channel Islands and the Isle of Man (which I will refer to as the "offshore accounts") because neither the Channel Islands nor the Isle of Man is to be regarded as part of the United Kingdom (a matter I will come back to in more detail). Mr. Crowley-Milling did not make any Will otherwise dealing with those assets. So if the effect of clause 1(c) of his 2009 Will was to exclude the offshore accounts from that Will he died intestate in respect of those accounts and they would pass to the next of kin whom I have already mentioned.
- The first two defendants are the executors who have proved the 2009 Will, probate being granted on 28th August 2013. Neither they nor the three defendants who are next of kin have opposed these proceedings or taken any active part in them. That is not, so far at any rate as the third to fifth defendants are concerned, because they entirely agree with the contentions of the Royal Society; but because they do not wish to expose themselves to any risk as to costs. That means that the court is left having to deal with this matter without any argument in opposition to the claim, but it is not the practice to grant declarations in default and the court has itself to be satisfied that the declarations are appropriate.
The Facts
- Mr. Crowley-Milling was a distinguished physicist - I have seen his 2004 who's who entry which reveals that he then described himself as a consultant on computer control systems, that he had been elected a fellow of the Institute of Electrical Engineers in 1956, and that he had written extensively on particle accelerators and computer control systems. After various positions in the UK, in 1971 it seems that he moved to the European Organisation for Nuclear Research outside Geneva ("CERN") and he stayed there for the remainder of his full time career, retiring from CERN in 1983, although he remained a consultant to a number of entities around the world thereafter.
- In 1981 Mr. Crowley-Milling was awarded the Glazebrook Medal by the Institute of Physics; and in 1982 he was awarded a CMG by Her Majesty for Services to CERN. Also in 1982 he was invited to give, and gave, the Clifford Patterson lecture at the Royal Society on developments at CERN, that being his first contact with the Society. In 1986 he wrote a letter to the secretary of the Royal Society in which he said:
"I am writing to explore the possibilities of leaving money to the Society. We have no children and my wife is considerably younger than I am and will most likely outlive me. At the time of her death, if nothing unforeseen occurs, she should have something over half a million pounds at present day values to dispose of. She would like to leave it to the Society to set up a foundation and provide scholarships or something similar as a memorial to me. I do not know if this is possible as the only connection I have had with the Society was when I had the honour to be asked to give the Clifford Patterson lecture in 1982."
That led to a lunch meeting between Mr. Crowley-Milling and the treasurer and secretary of the Society. It is apparent from the Society's records that, at that meeting, he must have mentioned that he had various offshore accounts because the Society's note referred to funds in the Channel Islands and the Isle of Man. Indeed, a note of 4th November 1986 to the Society's solicitors referred to difficulties arising from the fact that the funds were held in (a) a Swiss bank; (b) the Channel Islands; and (c) in the Isle of Man. By November 1986 Mr. Crowley-Milling was writing to the Society indicating that "We will see our solicitors about incorporating it in our Wills" (that is, a proposed fund).
- It is not apparent on the evidence before me what was then done about it, but by 1991 both Mr. Crowley-Milling and his wife had made Wills. His was dated 26th February 1991 and his residuary estate was left to his wife if she should survive him for thirty days, but, if she should not survive him for that period, was left to the Royal Society. Her Will, also dated 26th February 1991, provided that her residuary estate should be held on trust to pay the income thereon to her husband during his lifetime and after his death should be paid to the Royal Society.
- In 1996 Mr. Crowley-Milling was in contact again with the Royal Society in which he said:
"I had some contact with Sir John Mason about seven years ago about our Wills. We have no children and my wife is considerably younger than I am and will most likely outlive me. We have both made Wills which, on death of the last survivor, bequeath the majority of our assets to the Society for the foundation of a fund to provide assistance, such as scholarships, for young scientists especially in the applied science field."
I should say that the 1991 Wills contained no limitations as to the assets to which they should apply. Both contained declarations that the testators were domiciled in England and indeed, although Mr. Crowley-Milling lived in Switzerland while he was working at CERN and for some considerable timethereafter (as I will come to), it does not appear that he ever ceased to be domiciled in England.
- In his 1996 letter, Mr. Crowley-Milling suggested that the fund would stand at the order of £2million at present day prices. He explained that a large part of it was tied up in non-income producing assets such as a very valuable vintage car.
- In 2003 Mr. Crowley-Milling made a first Codicil to his 1991 Will simply dealing with the appointment of executors. In 2004 he made a second Codicil to his Will giving his friend, Mr. Christopher John Bentley, an option to purchase his Alfa Romeo car, which it appears had been given to him by his father at the age of twenty-one, for the price of £2million.
- The next relevant event is that, on 14th August 2005, his wife died. As I have already referred to, she left her residuary estate on trust for him for life with remainder to the Royal Society. There is a schedule of her assets which shows that her assets were all in the United Kingdom. Apart from a property at 5 West Court in Harrogate, valued at some £275,000, the other assets were all financial assets amounting in total to £460,000 odd.
- In light of his wife's death, Mr. Crowley-Milling wrote shortly afterwards on 2nd September 2005 to the Treasurer of the Royal Society explaining that his first contact had been in 1982 when he was invited to give the Clifford Patterson lecture and then that he had been in contact in 1986 when "my wife and I were making our Wills. Since we have no children and I am the last survivor to bear the name Crowley-Milling, my wife thought it a nice gesture to use our assets on our deaths to found a Crowley-Milling memorial fellowship to keep the name alive". Then he said:
"There has been no urgent need to go into further details. However, my wife's recent death and my past eighty-eighth birthday reminds me that such things cannot be put off indefinitely and so I think it is time we got together to discuss details of the proposed fellowship and get something laid down as pertain to procedures. As an indication of the possible scope, the bequest would be about £3million at present market value. I am resident in Switzerland."
He then explained that he spent part of the year in Harrogate. That led to the executive secretary of the Royal Society, Mr. Cox, and Sir David Wallace seeing Mr. Crowley-Milling for lunch in October 2005. The upshot of that was that the fund was going to be established and that it was recognised that Mr. Crowley-Milling might wish to send further sums from time to time.
- The next event that happened was the execution of his Swiss Will, which, as I have said, was on 13th February 2006. The Swiss Will, which is written in French in manuscript, gives his residence at his Swiss address and appointed the Royal Society as the sole heir of all his property in Switzerland and appointed his Swiss lawyer as executor for moveable and immoveable property in Switzerland. I have not seen any documents explaining the circumstances in which he came to make a Swiss Will, but there is some explanation given in an undated document (which I will have to refer to later) which says this among other things:
"Probate for my assets in Switzerland will have to be applied for there. I have been advised that the simplest thing, since my wife has died, is for me to have a separate Will prepared according to Swiss law for my assets in Switzerland so that Probate can be applied for there, the taxes paid and the proceeds remitted directly to the Royal Society."
He then gives the name of his Swiss lawyer.
- On 28th April 2006 he contacted a firm of English solicitors, Raworths, and said to them:
"Since the circumstances have changed, I wish to make a new Will rather than a Codicil to the existing one. Recently there have been two major changes: Firstly, when I was last in Switzerland I made a Swiss Will to cover my assets there. On my death a local lawyer will realise all my assets there, sort out the tax liability and convey the proceeds to the Royal Society to be credited to my fund. Secondly, I have agreed to sell the Alfa Romeo to JC Bentley and an agreement has been drawn up for him to pay for it in instalments by direct contributions to the Royal Society. This has the advantage that my fund can be set up now and not have to wait until I have died, but I will be able to see how it is being administered and who the initial beneficiaries are. This means that the Will can be quite simple and I enclose a copy of what I would like you to cover."
The enclosed note was headed: "MC Crowley-Milling Draft Will" and read:
"(1) I hereby revoke all previous testamentary dispositions made by me.
(2) I hereby appoint Christopher Butterworth and [blank] as trustees.
(3) I bequeath all my pictures, photographs, books, medals, trophies, jewellery and all articles bearing the names Michael Gee Gladys and/or Crowley-Milling or that are associated with them to mynieces, Gillian Masterman and Joy Robinson, jointly as divided between themselves and their families free of all taxes.
(4) I wish all my other assets in Great Britain to be realised and the whole proceeds after expenses to be transferred to the Royal Society to be credited to the Crowley-Milling trust fund."
- At around the same time Mr. Crowley-Milling signed a document called the "Gift Agreement" with the Royal Society concerning the establishment of the Crowley-Milling fund setting out that it was his intention to establish the fund, what its purpose was and that it was being established with the intention of ultimately reaching approximately £3million. It recorded that an initial payment of £200,000 had established the fund in March 2006, that being paid by Mr. Bentley as part payment of the price of the Alfa Romeo. The intention at that stage was that Mr. Bentley would make further payments to the fund.
- On 2nd May 2006, an individual at Raworths telephoned Mr. Crowley-Milling saying that "I would be happy to prepare a Will on his behalf". The note also says "I ran through his instructions on the telephone", but there is before me no evidence that what that running through the instructions consisted of. Two days later, on 4th May 2006, Serena Door, who was probably the person who made the note, sent to Mr. Crowley-Milling a draft Will. In her accompanying letter, she said:
"Clause 1 confirms that you revoke all other Wills made in this country. It also confirms that you are domiciled in England and that this Will extends only to property held in this country. If, after seeking professional advice, it comes to light that you are not domiciled in this country, please let me know."
The letter then dealt with various other matters on the draft Will. Mr. Crowley-Milling, on 10th May 2006, wrote to her saying among other things:
"Please add the enclosed envelope to my files and destroy the other ones which are no longer applicable after my wife's death."
Ms. Door replied on 16th May 2006:
"I confirm that the envelope has been lodged with your Will for safekeeping. Rather than destroy your previous letters, I will return them to you when you come into the office to sign your Will in order for you to deal with them accordingly."On 15th June 2006, Mr. Crowley-Milling did attend the office to sign the Will and the attendance note records that he also took back the various envelopes that had been placed with his current Will and "I confirm that the most recent envelope that he had sent to us was now in this firm's safe". That note also reveals that, at that date, Mr. Crowley-Milling was still resident for tax purposes in Switzerland but domiciled in England.
- The 2006 Will was, as I have said, executed on 15th June 2006. Clause 1 is in similar form to Clause 1 of the 2009 Will, namely as follows:
"I hereby revoke all former Wills and testamentary dispositions made by me with the exception of my Swiss Will dated 13th February 2006 and
I declare that:
a) I am domiciled in England.
b) this Will and any Codicil to it shall be construed and take effect according to English law.
c) this Will and any Codicil to it shall extend only to property of mine which is situated at my death in the United Kingdom."
Clause 2 deals with the appointment of executors. Clause 3 contained a legacy as follows:
"I give to my nieces, Gillian Masterman and Joy Robinson, in equal shares or the whole to the survivor, my pictures, photographs, books, medals, trophies, jewellery and all articles bearing the names Michael Gee Gladys and/or Crowley-Milling or that are associated with them."
The remainder of the Will devises and bequeathed his residuary estate to the Royal Society.
- The next event was in September 2008 when Mr. Cox and another individual of the Royal Society met Mr. Crowley-Milling and Mr. Bentley in Harrogate for lunch. That records that Mr. Crowley-Milling told them that he had now completely moved to the United Kingdom and his permanent residence was in Harrogate and noted: "He is now in the process of selling his apartment in Geneva".
- In June 2009 Mr. Crowley-Milling contacted Raworths again and made an appointment to update his Will. He saw Raworths on 30th June and it is apparent that he told them that his niece Gillian Masterman had died and her share should pass to her two children, James and Rebecca. There was also another reason for updating his Will, which was that he was intending to buy a house, or had bought a house for his carer, and the Will was to leave the houseto her on the condition that she continued to care for him. The attendance note of that meeting on 30th June 2009 dealt with those matters, but also said this:
"He is aware of the fact that at the moment there will be no IHT on his estate because it all passes to an exempt beneficiary, but the value of the house and chattels is over the nil rate band and he wants to know what happens to the liability. We then discussed those matters."
It also refers to Mr. Crowley-Milling having sold his house in Switzerland, but that he still had a bank account there. It continues:
"I also mentioned that we had various letters with his Will and he took the envelopes away which contained sealed letters dated 29th November 2007, 21st December 2007. He said he would review them and come back to me with a revised letter and a revised list of assets."
- A revised Will was drafted; but, in July 2009, Mr. Crowley-Milling wrote to the solicitor, Mrs. Justine Hardy, at Raworths, as follows:
"I have been thinking I should leave more to my nieces and their offspring. When my wife was alive she was insistent that they should only have the minimum from the way she felt that they had treated her. That my money should go to keep the name Crowley-Milling alive instead of unknown offspring. I am getting softer in my old age and would like to leave them something especially now that I am leaving the new house to Julie. How would it work out if I left £200,000 to each family free of tax? In the case of Joy Robinson to her or, if she pre-deceases me, to her two girls, Natasha and Katrina, who will soon reach their majority and in the case of Gillian, to her two children, James and Rebecca, to be held in trust until they are twenty-one."
He then dealt with some other matters. An amended draft sent to him on 30th July 2009 incorporated legacies of £200,000 each to Joy Robinson and to James and Rebecca Masterman. On 30th August, however, he wrote again to Mrs. Hardy:
"The only query I have about the draft Will is that I would not like the Masterman children to have the bequest immediately while they are still in their teens when they would have the opportunity to squander it. Could we put in the clause that it is held in trust, one of the trustees being their father, until they reach the age of twenty-five? Meanwhile, they could receive the income from the trust."
I should record here that I have no evidence of the exact dates of birth of James or Rebecca Masterman, but there is evidence that in October 2014 they were respectively aged twenty-five and twenty-one. This means that, in 2009, five years earlier, they would have been aged about twenty and sixteen respectively.
- On 19th October 2009 Mr. Crowley-Milling came into the solicitors and executed his 2009 Will. The attendance note says:
"Mr. Crowley-Milling had also prepared a list of his assets and details of some chattels, as I had asked him to, and he handed these to me to go with the Will."
- I have already referred to Clause 1 of the 2009 Will. I should refer briefly to the remaining provisions. Clause 2 dealt with the appointment of executors. Clause 3 provided:
"I give (free of costs of transfer and inheritance tax) to my Trustees my pictures, photographs, books, medals, trophies, jewellery and all articles bearing the names Michael Gee Gladys and/or Crowley-Milling or that are associated with them for transferring as to one half for my niece, Joy Robinson, and as to the other half equally between Gillian Masterman's children, James and Rebecca, and I declare my Trustees may allow the beneficiaries to choose items to make up their one half-share, but in the event of any dispute the decision of my Trustees as to the distribution shall be final and binding."
Clause 4 provided for the pecuniary legacies of "£200,000 to Joy Robinson and £200,000 to his trustees and Paul Masterman as trustees to hold upon trust in equal shares for James Masterman and Rebecca Masterman upon attaining the age of twenty-five". Clause 5 dealt with the gift of the house which he had bought for his carer. Clause 6 provides:
"I devise and bequeath the remainder of my real and personal estate whatsoever and wheresoever not hereby or by any Codicil hereto otherwise specifically disposed of unto my Trustees upon trust to sell, call in and convert the same into money with power to postpone the sale, calling in and conversion thereof so long as my trustees shall in their absolute discretion think fit without being liable for loss."
Clause 7 provided that, after payment of his debts, the residue should be held for the Royal Society for the credit of "The Crowley-Milling Trust Fund". As I referred to at the outset of the judgment, Clause 1 contains the provision in1(c) that "the Will and any Codicil to it shall extend only to property of mind which is situated at my death in the United Kingdom".
- There are two undated documents which I should refer to. These were found among the late Mr. Crowley-Milling's personal papers. They may be examples of the letters in sealed envelopes referred to in the Raworths' file, or drafts of such letters. One of them, which is evidently drawn up before his wife died in August 2005, is headed "In case of my death" and then sets out various things that have to be done assuming that his wife survives him. It records, among other things that:
"I qualified in 1971 as non-resident in the UK as I was employed full time there until 1983. Even though I am now retired and spend about half the year in the UK, I am still considered to be a Swiss resident for tax purposes. The only residence I own is the apartment in Saint- Cergues."
He then sets out various assets in Switzerland. He then says: "My assets in England include:
(1) [There is reference to his Alfa Romeo sports car].
(2) I have three bank accounts. A current account [account number] with Barclays Douglas IOM; a savings account [account number] with the same bank and an account [again giving the number] at the UBS Branch Geneva. I have arranged for my wife to have access to the Swiss account by Power of Attorney so that she can pay any expenses arising in Switzerland in Swiss Francs."
He then deals with income he receives from a trust set up by his father. That, as I say, was undated, but is plainly before his wife died in 2005. The second shorter document, also headed "In case of my death", is plainly drawn up after his wife died and I have already briefly referred to it. Having set out various assets and having referred to the advice he had received (which I have already cited) that the simplest thing would be to have a separate Will prepared according to Swiss law, he continues:
"My assets in England include three bank accounts, a current account with Barclays Douglas IOM, a savings account with the same bank, an account with the Abbey National [he gives an address in St. Helier, Jersey] as well as two other funds with the same bank and an account of the UBS CERN Branch, Geneva."
He then deals with the family trust and refers to an investment in a fund run by a manager in Switzerland.
- I have before me some evidence in relation to the offshore accounts. That reveals that the Santander accounts, which I assume are the same accounts as the Abbey National accounts referred to in the second of the two notes, were opened in 2000, 2002 and 2004. They also show that the two Barclays accounts were opened in the Isle of Man in October 1996. What is noticeable about those two notes (and as I say the later one can be dated to between his wife's death in August 2005 and the drawing up of his Swiss Will in February 2006) is that there is no English bank account listed at all. So far as the evidence before me establishes, in 2006, at the time he made his 2006 Will, he owned no freehold property in the UK - the reference in the first of those notes was that the only residence he owned was the apartment in Switzerland - and he had become the life tenant of his wife's property in Harrogate. There is no evidence that, at this stage, he owned any UK property himself. Subsequently, the only property bought was the one which he left to his carer. There is no evidence that he had any bank accounts in the UK and there was no evidence that he owned any other assets of such substance in the UK that he thought worth mentioning, except the life interest under his father's trust and the very valuable Alfa Romeo sports car, which, by 2006, he had dealt with separately. He did not make any Codicils or change his Will since the 2009 Will and I have already referred to the fact that it has been admitted to Probate.
- On those facts Mr. Wilson argues that, firstly, as a matter of construction, the reference to the United Kingdom in Clause 1(c) of the 2009 Will is not to be given its usual technical meaning but is to be given a wider meaning such as to include the offshore accounts. There is no doubt that the technical meaning of "United Kingdom" would not include Jersey in the Channel Islands or the Isle of Man. I was shown by Mr. Wilson an extract from Stroud's Judicial Dictionary which says under the entry of "United Kingdom":
"The United Kingdom is a union of England and Wales with Scotland forming Great Britain (Union with Scotland Act 1706) and Northern Ireland (Union with Ireland Act 1800, Government of Ireland Act 1920). So apart from interpretation clauses the use of "United Kingdom" in statutes shows that only Great Britain and Northern Ireland, but not the Channel Islands or Isle of Man are included therein."
That is confirmed by the Interpretation Act 1978, schedule 1 of which provides:
"The United Kingdom means Great Britain and Northern Ireland" whereas "British Islands means the United Kingdom, the Channel Islands and the Isle of Man."
The Channel Islands and the Isle of Man are therefore not part of the United Kingdom. I also looked at Halsbury's Laws of England and under "Constitutional and Administrative Law" (rule 20) para.3 under the heading of "United Kingdom", there is a reference to the United Kingdom meaning "Great Britain and Northern Ireland exclusive of the Channel Islands and the Isle of Man". Under "Commonwealth" (rule 13) at para.790, (Constitutional status of the Channel Islands) Halsbury's provides:
"The Channel Islands (like the Isle of Man) occupy an anomalous position for they are neither part of the United Kingdom nor colonies."
Under para.799 (Constitutional status of the Isle of Man) Halsbury's says:
"The Isle of Man is not part of the United Kingdom."
For those who are interested in the historical position of the Channel Islands there is a brief explanation in the judgment of Lord Collins of Mapesbury in R (on the Application of Barclay) v. the Lord Chancellor [2009] UKSC 9 at para.8 in which he says:
"The Channel Islands consist of two Bailiwicks, Jersey and Guernsey. The Channel Islands are Crown dependencies but they are not part of the United Kingdom nor are they colonies. When King Philippe Auguste retook possession of continental Normandy in 1204, King John retained the Channel Islands. His right as Duke of Normandy lapsed and a separate title grew up by force of occupation, which attached to him as King of England. This was confirmed by the Treaty of Bretigny in 1360."
Certainly it would come as an unpleasant surprise to the residents of the Channel Islands if they were told that they were part of the United Kingdom and I am sure the same is true of the Isle of Man. If these words, therefore, are given their normal legal meaning there is no doubt that the effect would be to exclude from the 2009 Will the offshore accounts because they are not situated in the United Kingdom as properly understood and therefore there would be an intestacy in relation to them.
- Mr. Wilson, however, says that on the facts of the present case it is not only possible, but the court ought, to adopt an interpretation of the words "United Kingdom" in the Will which does not exclude the offshore accounts. Hereferred me to what is now the leading authority on the interpretation of Wills, the decision of the Supreme Court in Marley v. Rawlings [2014] UKSC 2. Even though that case in the end turned on the question of rectification, it contains some very valuable guidance from Lord Neuberger. Lord Neuberger deals with the interpretation of Wills at paras.17 to 26. I will not read it all out, but he refers at para.19 to the principles which apply to the interpretation of construction of contracts as follows:
"(19) When interpreting a contract, the court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words, (a) in the light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions of the document, (iv) the facts known or assumed by the parties at the time that the document was executed, and (v) common sense, but (b) ignoring subjective evidence of any party's intentions.
(20) When it comes to interpreting wills, it seems to me that the approach should be the same. Whether the document in question is a commercial contract or a will, the aim is to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context."
At para.23 he refers to the well-known suggestion of Lord Justice James in Boyes v Cook (1880) 14 Ch D 53, 56, that, "when interpreting a will, the court should 'place [itself] in [the testator's] arm-chair', "and says that this is consistent with the approach of interpretation by reference to the factual context". Taking that by itself, that would require the court to have regard to the surrounding factual matrix at the time that Mr. Crowley-Milling made his 2009 Will. But there is a highly relevant statutory provision, as Lord Neuberger said, contained in s.21 of the Administration of Justice Act 1982.
That provides as follows:
"This section applies to a will-
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.
(2) In so far as this section applies to a will extrinsic evidence, including evidence of the testator's intention, may be admitted to assist in its interpretation."
Where that section applies therefore it goes beyond the principles applicable to the construction of contracts, under which evidence of the intention of the parties is not admissible, and allows in evidence of the testator's intention.
- Mr. Wilson has submitted to me that, although this is not a case within s.21(1)(a) (there was no suggestion that any part of the Will is meaningless) nor within s.21(1)(b) (as he does not suggest that the words are ambiguous on the face of it), it does come within s.21(1)(c) because evidence, not including evidence of the testator's intention, shows that the language used is ambiguous. In that respect, what he says is that when one has regard to the fact that there are assets offshore and when one has regard to the careful provision for the legacies of £200,000, in the case of James and Rebecca Masterman not to be taken until the age of twenty-five, then it reveals an ambiguity as to whether Mr. Crowley-Milling intended the exclusion in Clause 1(c) of his 2009 Will of assets outside the United Kingdom really to exclude the bank accounts in the Channel Islands and the Isle of Man. I accept the submission. It does seem to me that, looking at the facts other than the facts as to his intention, a real question is raised as to whether his intention was by using the words that the Will was to be confined to the United Kingdom to cut out any reference to his offshore bank accounts. I therefore will look at all the evidence that is available, including evidence of the testator's intention, in order to construe the words "The United Kingdom".
- Mr. Wilson also submitted that, although lawyers may understand perfectly well the precise connotation of the words "United Kingdom", it by no means follows that laymen (even, as Mr. Crowley-Milling obviously was, highly intelligent laymen) would have grasped the subtleties of the difference between such concepts as Great Britain, and the United Kingdom, and the British Islands; and that many people might well have thought that "this country" includes the Channel Islands and the Isle of Man, and that "Great Britain" includes the Channel Islands and the Isle of Man, and that the "United Kingdom" includes the Channel Islands and the Isle of Man. They would, of course, be wrong technically. But I have the comfort of a statement by Mr. Justice Matthew as long ago as 1887 when dealing with a policy of insurance which covered deaths caused by accidents happening within the United Kingdom and where the deceased had drowned in Jersey: see Stoneham v. The Ocean, Railway v. General Accident Insurance Co. [1887] 19 QBD 237. Mr. Justice Matthew gave judgment for the plaintiff saying this:
"I think it is sufficiently apparent that the question which the parties intended to leave to the Court as a question of law is whether Jersey is, in popular language, a part of the United Kingdom. I have no hesitation in saying that it is: I can give no other answer to the question."
Mr. Justice Cave agreed, although did not express it in quite the same way. The actual decision may be somewhat doubtful. One might think that in an insurance policy, which is a technical legal document, the words "United Kingdom" should give be a technical legal meaning rather than a popular meaning. But that is not the purpose for which I am citing this case. The purpose which I am citing it for is that it occurred to Mr. Justice Matthew in 1887 that he had no hesitation in saying that Jersey was, in popular language, a part of the United Kingdom. It certainly leads me to conclude that it is possible that laymen might regard the United Kingdom as extending to include the Channel Islands and the Isle of Man and that, in the light of the surrounding circumstances, it is therefore entirely possible that that was what Mr. Crowley-Milling meant when he referred to the Will extending only to property of his situated at his death in the United Kingdom. It is of some note, as Mr. Wilson submitted to me, those were not the words he had himself used when sending his draft of the Will. He had used the words "Great Britain".
They are also not the words which were used by the solicitors when returning the draft and the accompanying letter. Those were the even less precise words "this country" and it is entirely possible that neither the solicitors nor Mr. Crowley-Milling noticed the difference or thought there was any difference between "this country" and "Great Britain", and "the United Kingdom". There is certainly no evidence from the file which has been drawn to my attention suggesting any consideration was given as to the precise ambit of that phrase.
- In those circumstances I proceed to look at what the evidence shows to have been Mr. Crowley-Milling's intention in 2009. However, it seems to me that whatever his intention in 2009 was cannot be different from what his intention was in 2006 because this provision (Clause 1) of the Will was in identical form in 2009 to what it had been in 2006. There is no suggestion in the file that, in 2009, he was doing anything other than updating his Will in the various respects in which he had asked for it to be updated and no suggestion that its geographical ambit was intended to change. In effect, therefore, the question is what did he mean to do in 2006?
- I am entirely satisfied on the facts which have been put before me that Mr. Crowley-Milling did intend to include the offshore accounts in his 2006 Will and hence in his 2009 Will. It seems to me that the first contact in 1986 with the Royal Society indicated that, at that stage, he had no intention to leave money of any substance to anybody else, saying in his letter of 31st August1986 that, at the time of his wife's death, she should have something over half a million pounds to dispose of and she would like to leave it to the Society. That obviously assumes that his assets would pass to his wife. In 1991, when they both executed their Wills, neither is confined to assets in the United Kingdom. At that stage, of course, he was still working in Geneva and resident in Switzerland for tax purposes. The way in which the 1991 Wills are drafted was such that, if not later changed, whoever died first, the total of their accumulated assets to include offshore assets would pass to the Royal Society. I have already referred to the fact that in 1986 he already had offshore accounts because that is noted in the Royal Society's notes of the meeting with him in 1986. I have also referred to the evidence that the accounts in the Isle of Man were set up in 1996. When he comes to instruct Raworths in 2006, there was no suggestion in his instructions that the impetus for wishing to draft a new Will is because he wishes to do anything else with his offshore accounts other than that they should continue to go to the Royal Society as they would do under his 1991 Will. The impetus of the 2006 instructions was two-fold: It was, firstly, because he had been advised after his wife's death to make a separate Swiss Will; and, secondly, because of the complications arising as a result of the Alfa Romeo. But there is no suggestion that he wanted to change the destination of his residuary estate. Indeed, the explanation that he later gave in 2009 when (as I have referred to) he said in his letter of 20th July 2009: "When my wife was alive she was insistent that they should only have the minimum for the way she felt they had treated her and that my money should go to keep the name Crowley-Milling alive instead of unknown offspring" suggests that, up until his wife's death, his intention certainly was that no substantial part of his money should go to his nieces and subsequently their offspring. So far as the documentary record shows, that intention only changed in 2009 with that letter of 20th July 2009 in which he says that he has become softer in his old age and would like to leave them something. The clear inference from that is that he had not previously intended to leave them anything. This is supported by the reference in the attendance note of 30th June 2009 of his understanding that there would be no IHT on his estate because it all passes to an exempt beneficiary. All of this seems to me to be consistent with his instructions for the 2006 Will not containing any reference to dealing with the offshore assets in any other way than they had been dealt with in the 1991 Will; that is by leaving them to go to the residuary beneficiary, the Royal Society. So pausing at 2006 there is really no doubt in my mind that Mr. Crowley-Milling's intention at that time was that this residuary estate, save for the matters dealt with by his Swiss Will which at that stage consisted of a Swiss property as well as a Swiss bank account, should pass to the Royal Society including the assets which were in his offshore accounts.
- In addition there is the fact that the undated notes both refer to the bank accounts in the Isle of Man and Jersey under the heading "Assets in England".As I have already referred to, the second of those notes seems to me to be dateable to between August 2005 and February 2006. It casts considerable light on the way in which he then thought of the assets in the Isle of Man and Jersey. The Isle of Man and the Channel Islands are not only not part of the United Kingdom, but they are plainly not part of England either. But Mr. Crowley-Milling was happy to refer to them as being assets in England. One has to be a little bit careful about placing too much weight on that because both notes seem also to refer to his Swiss bank account in Geneva in the same paragraph, but I consider that certainly the second note, by which stage he had no other assets in England apart from the trust under his father's trust, indicates that he regarded the Isle of Man and Jersey accounts as being in England. All that, as I say, makes it clear to me that he did not intend in 2006 the provision that the Will be confined to property in the United Kingdom to exclude the offshore bank accounts.
- When one comes to 2009 it seems to me that there is no evidence that his intention had changed. The impetus for the 2009 re-draft was in the first instance (as I have explained) partly because his niece, Mrs. Masterman, had died and so it was to substitute her two children for her interest and partly because of his plan to buy a house to leave it to his carer; and subsequently also to incorporate his desire, having gone soft in his old age, to leave something to his nieces and their offspring. The something that he chose to leave was £200,000 to each family free of tax. In relation to James and Rebecca Masterman, he was anxious that they should not receive it at too young an age and, hence, as explained in his letter of 20th August 2009, he wished them to only receive the money at twenty-five.
- It does not seem consistent with that that he should have intended that his bank accounts in the Isle of Man and Jersey should not be dealt with under his 2009 Will, and should be left to pass as on an intestacy. There is no evidence that he ever took any advice or ever instructed any lawyers in either the Isle of Man or the Channel Islands. Had he intended those accounts not to be dealt with by his English Will, I think it likely that he would have intended they should be dealt with by some other Will. I am prepared to infer that from all the material I have seen he had sufficient understanding to appreciate that, if he did not deal with assets by way of a Will, they would pass to those entitled on intestacy. Given that he knew perfectly well the state of his family (namely that he, by that stage, had no surviving wife and no children, and his only relatives were the descendants of his deceased brother), I have little doubt that he would have appreciated that if he died intestate as to any part of his estate it would pass to his relatives, namely his niece and his other niece's children. In those circumstances it seems to me that his intention in 2009 was precisely the same as it was in 2006, namely that the clause in the Will which provides that the Will "should only extend to property which is situated at my death in theUnited Kingdom" was not intended to cut out the offshore accounts. It does seem to me that consistent with the guidance given by Lord Neuberger in Marley v. Rawlings and taking into account the extrinsic evidence including what I regard as strong evidence of the testator's intention under s.21 of the 1982 Act in the way that I have explained I am satisfied I can, it is appropriate to declare that what this testator meant by "the United Kingdom" in clause 1(c) of the 2009 Will was not confined to the United Kingdom, Great Britain and Northern Ireland in its technical legal sense but extended to include the Channel Islands and the Isle of Man. The effect of that is that the offshore accounts will pass to the Royal Society as residuary beneficiary.
- That makes is strictly unnecessary to deal with the question of rectification, but I will deal with it briefly in case I am wrong on the question of construction or in case I am wrong that s.21 applies to this Will. I should say that if s.21 does not apply to this Will, the evidence in support of the construction I have adopted is not as strong because it would exclude, in my judgment, any evidence the purpose of adducing which was to infer what the testator's actual intention was. I would then have found it much more difficult to conclude with the same confidence that I have that the proper construction of the Will would be that which I have adopted. But dealing briefly with rectification, s.20 of the same Act provides:
"(1) If a court is satisfied that a will is so expressed that it fails to carry out the testator's intentions, in consequence -
(a) of a clerical error; or
(b) of a failure to understand his instructions,
it may order that the will shall be rectified so as to carry out his intentions.
(2) An application for an order under this section shall not, except with the permission of the court, be made after the end of the period of six months from the date on which representation with respect to the estate of the deceased is first taken out."
In this case more than six months has elapsed from the grant of probate. The relevant dates are as follows: Mr. Crowley-Milling died on 24th December 2012 and probate was granted on 28th August 2013, as I have already referred to. That means that the six months expired on 28th February 2014. The claim for rectification was not issued until 23rd February 2015, nearly twelve months after the expiry of that six months' period. In those circumstances it is necessary for the claimant to satisfy me that it would be appropriate, nevertheless, to grant permission for the rectification to proceed. I was referred by Mr. Wilson in that context to the decision of Mr. David Donaldson QC (sitting as a Deputy High Court Judge in this Division) in Chittock v. Stevens [2000] WTLR 643. He said that there was then no authority setting out the principles to be applied by the court when considering an application under s.20(2) of the Administration of Justice Act 1982, but he adopted the guidelines set out by Sir Robert Megarry, the then Vice Chancellor, in Re Salmon [1981] Ch. 167 in respect of a similar provision in the Inheritance (Provision for Family and Dependants) Act 1975. These were as follows:
(1) The court's discretion is unfettered but must be exercised judicially in accordance with what is right and proper.
(2) The onus is on the Applicant to show sufficient grounds for the granting of permission to apply out of time.
(3) The court must consider whether the Applicant has acted promptly and the circumstances in which she applied for an extension of time after the expiry of the time limit.
(4) Were negotiations begun within the time limit?
(5) Has the estate been distributed before the claim was notified to the Defendants?
(6) Would dismissal of the claim leave the Applicant without recourse to other remedies?"
Those were the guidelines he applied, although he said they were not exhaustive. In applying those guidelines in the present case, Mr. Wilson said that it was just and proper that time should be extended. Most of his submissions focused on guideline 3: In what circumstances the applicant had sought permission after the expiry of the period of six months, looking at the whole circumstances. It is not necessary for me to deal with this in great detail.
- The problem that a normal construction would have cut out the offshore accounts was not drawn to anybody's attention - that is neither the next of kin nor the Royal Society - until conversations with Raworths in the early part of September 2014. It does appear from the correspondence that, up until then, they had been proceeding on the assumption that the offshore trusts did form part of the estate. The Royal Society took advice from their current solicitors and almost immediately it was indicated that they were contemplating, in those circumstances, applying for rectification. From then until the end of December 2014 considerable negotiations took place with a view to resolving the matter out of court. It is not necessary for me to detail them, but it is apparent both that the next of kin were on notice that if matters could not be resolved the Royal Society would consider taking proceedings for rectification and in fact expressly asked whether they would take any point on delay (a question which was, as far as I was shown, never specifically answered) and that right up until almost the last moment in December 2014, the indications were that it was likely that it would be possible to deal with the matter by way of a deed of variation without the necessity for proceedings. In the event, that proved impossible and that window (or at any rate the opportunity to execute a deed of variation effective for inheritance tax purposes) closed on 23rd December 2014 (two years after the date of death). Then there is exactly two months between then and the issue of the claim form in February 2015 during which the Royal Society had to put the matter before a Trustee meeting, which I was told took place on 29th January 2015. It does seem to me in those circumstances that the applicant could not be criticised for not having started proceedings any earlier than it did. When one looks at the other matters which are referred to in the guidelines, guideline (4) refers to the existence of negotiations which (as I have already set out) provide an explanation for the Royal Society holding his hand between September - when the problem first came to light - and the end of December 2014. Guideline (5) refers to the relevance and importance of whether or not the estate has been distributed. So far as these assets are concerned, there has been no distribution of these assets. Guideline (6) is whether a refusal to extend time would leave the applicant without redress against any other person. Although it is possible (as I discussed with Mr. Wilson in argument) that the Royal Society might in those circumstances have some claim against somebody else, it would certainly not be straightforward or easy. It seems to me, in those circumstances, that it is appropriate to extend the time and grant permission for the Royal Society to bring an application for rectification under s.20 of the Administration of Justice Act 1982 notwithstanding that more than six months has elapsed from the date on which the grant of probate was taken out.
- Having reached that conclusion there is, it seems to me, for all the reasons that I gave on the question of construction, no real doubt that Mr. Crowley-Milling intended in 2009 that his Will should not cut out the offshore accounts and that when he gave instructions in 2006 that it be limited to Great Britain, he thought of his assets as being either in Switzerland or Great Britain, Great Britain for these purposes including the Channel Islands and the Isle of Man where his offshore accounts were. I am satisfied that if there is jurisdiction to rectify, it is appropriate to do so. The main question under rectification is whether there is jurisdiction to do so and, of course, the court cannot rectify simply on the proof of the intention of the testator. It is necessary to come within one of the two gateways in s.20 of the Administration of Justice Act 1982. Mr. Wilson does not rely upon s.20(1)(a), a clerical error, but he does rely upon s.20(1)(b), namely that the Will failed to carry out the testator's intentions in consequence of a failure to understand his instructions. I do think that, in the light of the conclusions I have already come to on the facts, this can be characterised as a case where the Will failed to carry out the testator's intentions in consequence of a failure to understand his instructions; his instructions being in 2006 that the Will should be confined to his assets in Great Britain, but he intending thatnot to cut out the offshore accounts and intending his 2009 Will should be the same in this respect as his 2006 Will.
- I should have added when considering his intention that, although the third to fifth defendants have taken no part in these proceedings, they have written to the court. It is apparent (as I said at the outset) that the reason they have not defended the proceedings is not because they accept what Mr. Crowley-Milling's intentions were, but because they do not wish to run a risk as to costs. But in a letter of 4th November 2015 from Mrs. Joy Robinson, the third defendant, to the Royal Society which was quite properly put before me, she makes a number of points and she says this:
"As you are no doubt aware, we do not agree with the Royal Society's claim for this matter and believe that Michael Crowley-Milling knew very well what he was doing…We cannot risk the further associated costs and therefore accept the assurances of confirmation from Withers solicitors that we are under no risk of any liability for costs. However, we are writing in respect of two further aspects of the matter."
The first deals with an ex-gratia payment and is not something with which I am concerned. The second is this:
"There were numerous visits between MCCM and the family from 2006 up until he died in 2012 and from 2008 onwards there were several discussions involving his concerns over the Royal Society's continued change of stance in respect of global warming. His main and primary concern was that the fellowship in his name would be used to promote ideals he did not believe in and he did not want this to happen. He told us he had written to the Royal Society to discuss and get reassurances on this point, but they had not replied to any letter. He felt that without those reassurances he would rather all the rest of his money, including assets in Switzerland, went to the family instead. The family, however, encouraged him to write again to try to get the reassurances he said that he wanted and he did on a number of occasions, but sadly without success. In addition, in the period between 2008 and 2010, I worked closely with my uncle on producing his book which included a conclusion written in early 2009 which covered his thoughts on climate change."
Then she says this:
"From the correspondence it does appear that in 2008 provisional agreement was reached with an advance of £1.6million to be paid to the Royal Society some time during 2009 via payments into MCCM'sEnglish bank account from Mr. Bentley for MCCM's Alfa. However, MCM then clearly changed his mind. Not only did he not transfer any of that money to yourselves, but he also in early 2009 transferred significant amounts of that money out of his high interest account in the UK and into his Jersey and Isle of Man bank accounts and subsequently payments were made direct to the Jersey bank account."
The suggestion there is that Mr. Crowley-Milling had formed hostile views of the Royal Society over the Royal Society's stance on climate change and that is indeed borne out by some of the letters which he wrote to the Royal Society from 2009 onwards. I need only refer to one of them, which is a letter dated 3rd February 2011 in which he said:
"I have delayed replying to your last letter until I could see in what direction the new President would try to lead the Society. I was most disappointed to listen to his recent broadcast. Instead of giving us some enlightenment about the subject of his expertise in genetics, he gave us the Royal Society warming agenda where it became obvious that it was a subject in which he is neither expert nor impartial. I am more and more inclined to cut the amount I was proposing to leave to the Society and leave it to what remains of my family and unfortunately to the tax man also."
It does seem from that that Mr. Crowley-Milling was having second thoughts about leaving so much of his wealth to the Royal Society. However, it does seem to me that, even though he may towards the end of his life have changed his mind about that, he did not do anything about it and he did not change his Will. His Will has to be construed as it stood in 2009 and for the reasons I have given that, in my view, requires construing it in the same way as his 2006 way falls to be construed. In those circumstances, the fact that he may have fallen out with the Royal Society towards the end of his life does not affect at all the dispositions which he made in his 2009 Will.
- In those circumstances, I would, if it were necessary – which in the light of my judgment on construction it is not – be prepared to grant rectification of the 2009 Will so as to provide that clause 1(c) should not take effect so as to cut out the assets in the Channel Islands and the Isle of Man which could be easily dealt by adding at the end "situated at my death in the United Kingdom, Channel Islands or Isle of Man".
- The third, and very much the fall back, positon which Mr. Wilson put before me was that the court has jurisdiction to grant probate of a Will with certain parts omitted on the well-known principle that those parts were parts which the testator did not know and approve. That seems to me in the circumstances ofthis case to give rise to certain difficulties and I do not think it necessary to lengthen this judgment by saying anything about it. I therefore do not propose to indicate how I would have dealt with that application had I not been satisfied of the other two matters. As it is, for the reasons I have given, I will declare that on the true construction of the 2009 Will, the 2009 Will did include the assets in the Channel Islands and the Isle of Man.
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