Thomas & Ors v Kent

Thomas & Ors v Kent

The phrase 'my brothers and sisters' in clause 6 of the will includes all siblings of the testator (other than the excluded brother), whether alive or dead at the date of the will. The judge was correct to reject the construction limiting the class to siblings alive at the date of the will. However, the question of whether substitutional gifts to children require survival to the date of distribution was not properly argued or determined, and must be remitted for further consideration.

Parties
Claimant/appellant: Joan Hilda Thomas; Claimant/appellant: John Oliver; Claimant/appellant: Milford Ian Merryweather; Defendant/respondent: Pauline Victoria Kent
Jurisdiction
England and Wales
Judgment Date
04 May 2006
Procedural Posture
Civil Appeal / Appeal From Chancery Division (order on Construction of Will)
Outcome
Appeal dismissed; order set aside in part and matter remitted for further consideration.
Legal Topics
Construction of Wills, Class Gifts, Substitutional Gifts, Vesting of Interests, Representation of Beneficiaries
Succession Law Trusts and Estates Construction of Wills Class Gifts Substitutional Gifts Vesting of Interests Representation of Beneficiaries

Case Brief

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Parties

Joan Hilda Thomas

Claimant/appellant

John Oliver

Claimant/appellant

Milford Ian Merryweather

Claimant/appellant

Pauline Victoria Kent

Defendant/respondent

Procedural Posture

Civil Appeal / Appeal From Chancery Division (order on Construction of Will)

Legal Issues

  1. 1 Whether the phrase 'my brothers and sisters' in clause 6 of the will includes all siblings of the testator or only those alive at the date of the will or death
  2. 2 Whether the substitutional gift to children of deceased siblings is to be determined at the date of the testator's death or at the date of distribution
  3. 3 Whether shares of siblings vested indefeasibly at the testator's death or were subject to divestment if the sibling died before distribution

Ratio Decidendi

The phrase 'my brothers and sisters' in clause 6 of the will includes all siblings of the testator (other than the excluded brother), whether alive or dead at the date of the will. The judge was correct to reject the construction limiting the class to siblings alive at the date of the will. However, the question of whether substitutional gifts to children require survival to the date of distribution was not properly argued or determined, and must be remitted for further consideration.

Court Disposition

Appeal dismissed; order set aside in part and matter remitted for further consideration.

Orders

  • Appeal dismissed.
  • Order of the judge set aside insofar as it construed the will.