Statutory codicil and interpretation

The High Court has considered how best to interpret a statutory codicil and how to avoid an impasse in a hostile family situation in the recent case of Wesley v. Chantler and Others (2018).

The deceased had made a Will which was subsequently amended by a statutory codicil after he had lost testamentary capacity. The codicil had been made by the Court of Protection in what the court had felt was the best interests of the incapacitated testator at the time. After his death, the court was asked to interpret that codicil, which gave the executor right to income from various assets, including chattels, for her lifetime. She needed the court to decide whether this meant one had the right to enjoy those chattels within her own home.

To reach a decision, the court applied section 21 of the Administration of Justice Act 1982 ("AJA 1982"), which allowed it to look at extrinsic evidence to construe the clause. As the codicil had been made by the Court of Protection, evidence of the testator's intention could be established by reference to that court's reasoning when considering whether the proposed codicil was in the testator's best interests. It is understood that this is the first time the court has interpreted a statutory codicil under the powers given to it under section 21 AJA 1982.

Additionally, the executor also asked the court for permission to refuse an assent of chattels to the trustees as she had not been allowed access to check whether they were all present and undamaged. The court allowed the executor to give a qualified assent to these chattels. In return, the trustees exonerated the executor for any assets that may be missing or damaged. This offers a pragmatic solution which could usefully be employed in instances where the family is in dispute and where an executor has been denied access to check the items prior to transfer.