Tish & Ors v Olley & Ors [2018] EWHC 1069 (Ch)

[2018] EWHC 1069 (Ch)Case No HC-2015-003335
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY, TRUSTS AND PROBATE LIST (CHD)
IN THE ESTATE OF RAYMOND HOWARD TISH
AND IN THE MATTER OF THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975
Venue Royal Courts of Justice, Rolls Building, London EC4A 1NLDate 9 May 2018
Before
MRS JUSTICE ROSE
Between
(1) AMANDA MARIE TISHClaimants(2) REVAN ELLIOT TISHClaimant(3) ARABELLA CAMILLE TISHClaimant(1) DAREN THOMAS OLLEYDefendants(2) NICHOLAS LANGLEYDefendant(3) LOUISE TISHDefendant
Jordan Holland (instructed by Withers LLP) for First and Third ClaimantsThe Second Claimant appearing as a litigant in person for in person for The First and Second Defendants did not appear and were not representedRobert Sterling (instructed by Gelbergs) for Third DefendantHearing Hearing date: 23 April 2018
Judgment ApprovedMrs Justice Rose :
[1]The Claimants have brought a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the ‘1975 Act’) against the executors of the estate of the late Raymond Tish who died on 10 August 2014. He left a will which was made on 28 February 2014. Amanda Tish is the former wife of Mr Tish and Revan and Arabella Tish are her two children from her marriage with Mr Tish. Revan Tish is now 20 years old and Arabella is now 17. The First and Second Defendants are the executors of Mr Tish’s estate and Louise Tish was Mr Tish’s fourth wife and is now his widow. The proceedings were issued on 11 August 2015. On 7 December 2017, Master Clark ordered that a preliminary issue be heard to determine the proper construction of one clause of Mr Tish’s will. It is important to know what that clause means in order to decide the extent of the different parties’ entitlement under the will and hence whether it is necessary or appropriate to make any order under the 1975 Act.[2]At the hearing before me Mr Holland appeared for Amanda Tish and Arabella Tish. Revan Tish appeared as a litigant in person and adopted the submissions of Mr Holland. Mr Sterling appeared for Louise Tish. The executors did not appear and have taken a neutral stance in these proceedings.[3]The background to the claim is as follows. Amanda Tish met Mr Tish in 1990 and they married in 1993. Revan was born in January 1998 and Arabella in March 2001. Unfortunately the marriage broke down and Mr Tish left his family home in January 2005. Amanda Tish began divorce proceedings and ancillary relief proceedings in 2007 at which time Revan was nine years old and Arabella was six years old. Mr Tish has two other children, Natalie Tish from his second marriage and Justin Wigodsky from his first marriage.[4]On 22 November 2007 a consent order was made by District Judge Roberts sitting in the Principal Registry of the Family Division in London disposing of Amanda Tish’s ancillary relief application (‘the 2007 Order’). The 2007 Order recited that the terms of the order were accepted in full and final satisfaction of all claims including Amanda Tish’s claim for capital property adjustment and pension sharing orders. The financial provision made was that Mr Tish would pay £18,000 a year to Amanda Tish until she remarried or until further order. This was to be adjusted in line with inflation. Mr Tish was also ordered to pay £11,000 a year in respect of each of Revan and Arabella until they attain the age of 18 years or, if later, complete tertiary education. The money was to be paid to Amanda Tish for their benefit. This sum also was to be adjusted in line with inflation. In addition, Mr Tish had to pay Amanda Tish all school fees and reasonable extras incurred by the children because they attended private schools. He also undertook to the court to maintain his current life assurance policy with Zürich and to nominate the Claimants as beneficiaries of the policy. He was required to maintain the policy until the termination of his liability to pay the annual sums to Amanda Tish and the children or during the joint lives of him and Amanda Tish. The 2007 Order contained no express bar to any claim under the 1975 Act. It also acknowledged that the Order may need to be reviewed on his retirement or upon him reaching 65.[5]Tragically Mr Tish died of motor neuron disease when he was only 61. Louise Tish describes him in her witness statement as an “amazing man, full of vitality, optimism, energy and good humour, in short a lover of life”. He was she says “a fantastic husband” and stepfather to her own children. He discovered that he was ill in May 2012. Prior to that he had undergone a long period of tests and hospital visits trying to diagnose what was wrong with him. His condition deteriorated and he became more and more restricted in his movements. He gradually stopped being able to do all the personal and other tasks we take for granted until finally he lost the ability to write and to speak. Amanda Tish also says in her witness statement that after their rather long and difficult divorce proceedings their relationship improved dramatically by the time the early symptoms of Mr Tish’s illness began to show. He spent a lot of time with Revan and Arabella Tish in the years just before his death.[6]The will was drawn up at a time when Mr Tish already knew that he had this progressive disease. Mr Olley who is an accountant and Mr Tish’s former business partner took instructions from Mr Tish and relayed those to a Mr Cox who is a financial adviser who had previously carried out work for Mr Tish. The process by which the will was drawn up has been described by Mr Langley and Mr Ollie in their witness statements and the file of the firm who helped prepare the will has been disclosed. The main asset in Mr Tish’s estate was his one third interest in Tish Press Ltd, the small accountancy firm in which he was a partner, a share which Mr Tish thought was worth about £500,000. According to the notes of a meeting between Mr Cox, Louise Tish and Mr Tish which took place on 7 November 2013, Mr Tish expressed the wish that his interest in Tish Press Ltd was to be held as to £100,000 for Louise Tish outright and as to £400,000 on trust for Louise Tish for life and thereafter for his children. There was some work done towards setting up trusts and indeed three pilot trusts were executed on 13 February 2014 together with a letter of wishes. However no substantial assets were settled on the trusts during his lifetime and no gift is made to these trusts in the will. Therefore the Tish Press Ltd assets fell into the estate’s residue on Mr Tish’s death.[7]The executors say that the gross estate in England and Wales for probate purposes amounted to £534,653 and the net estate amounted to £436,968. The one third share in Tish Press Ltd was valued at about £442,000. In addition to the assets which passed by his will, Mr Tish had taken out various insurance policies which made payments on his death and which do not form part of his estate. Both Amanda Tish and Louise Tish have received payments under such life insurance policies. The Zürich insurance policy referred to in the 2007 Order paid out about £359,000 to Amanda Tish. In addition Louise Tish is entitled to a private pension following Mr Tish’s death.[8]Probate was granted to the executors by the Ipswich District Probate Registry on 13 February 2015 with power reserved to Louise Tish. The will includes the following provisions. By clause 1 the effect of the will is limited to his estate other than in Spain. Mr Tish also made a Spanish will which relates to his interest in a house in Majorca which he owned with Louise Tish. There are some specific gifts of precious items to his children and to Louise Tish. Clause 10 divides up the proceeds of sale of his Majorcan property valued at £150,000. He divides this into £100,000 to Natalie Tish, £25,000 to Arabella and £25,000 to Revan subject to them surviving him and attaining 25 years of age. Until the attainment of that age, he directs that the income shall be accumulated or applied wholly or in part in his trustees’ discretion for their maintenance, education or benefit. I was told that there is a serious question mark over the validity of this gift, partly because it appears to be in conflict with clause 1 which excludes property in Spain from the estate and partly because it may be inconsistent with the forced heirship provisions of Spanish law.[9]Clause 11 is the clause which is the subject of this preliminary issue. It reads:
“Maintenance I give to my daughter Arabella Camille Tish and my son Revan Elliot Tish as shall survive me free of all taxes Maintenance to be paid in relation to the current Court Order as may be amended in time, therefore if the maintenance is reduced then the reduced level can be accounted for.”
[10]The residuary estate is given by clause 14 to Louise Tish subject to her surviving him by 30 days. If that gift fails then the residuary estate is divided equally among Natalie, Revan and Arabella Tish. Clause 16 is a non-provision declaration in respect of his son Justin and clause 17 provides that the Standard Provisions and all of the Special Provisions of the Society of Trust and Estate Practitioners (2nd Edition) shall apply.[11]At the same time as making his will Mr Tish applied to the Family Court to reduce the amount of maintenance he was paying under the 2007 Order. Amanda Tish says in her witness statement that he stopped paying both spousal maintenance and child maintenance in March 2014. He also stopped paying school fees. The reason given by his solicitor was that he was no longer being paid as a salaried partner by the accountancy firm for which he had worked. Amanda Tish did not take any action with regard to Mr Tish’s breach of the 2007 Order as she did not want to cause him any further stress given his rapidly deteriorating health and that by that time he was not expected to live for much longer. However in May 2014 Mr Tish made an application to vary the 2007 Order, though it was not entirely clear to Amanda Tish what his position was as regards child maintenance and school fees. Amanda Tish strongly opposed the application because she could not afford to maintain the children and particularly their school fees by herself. Before the hearing there was a meeting between Amanda Tish and Mr Tish’s lawyers. However these discussions were overtaken by Mr Tish’s death on 10 August 2014 and no variation of the 2007 Order was made.

The principles applicable to interpreting the Will

[12]All the parties at the hearing before me were agreed as to the correct principles to be applied when interpreting a will. The modern position was summed up by Lord Neuberger of Abbotsbury PSC in Marley v Rawlings and anor [2015] AC 129:
“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. As Lord Hoffmann said in Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2005] 1 All ER 667, para 64, "No one has ever made an acontextual statement. There is always some context to any utterance, however meagre." To the same effect, Sir Thomas Bingham MR said in Arbuthnott v Fagan [1995] CLC 1396, that "[c]ourts will never construe words in a vacuum". 21 Of course, a contract is agreed between a number of parties, whereas a will is made by a single party. However, that distinction is an unconvincing reason for adopting a different approach in principle to interpretation of wills: it is merely one of the contextual circumstances which has to be borne in mind when interpreting the document concerned. Thus, the court takes the same approach to interpretation of unilateral notices as it takes to interpretation of contracts … .”
[13]Lord Neuberger went on to consider the application of section 21 of the Administration of Justice Act 1982, dealing with general rules as to evidence for the interpretation of wills. However neither Mr Holland nor Mr Sterling took me to any extrinsic evidence of Mr Tish’s intentions as capable of assisting in the interpretation of clause 11.[14]The parties also referred me to the “armchair principle” summarised by Blackburn J in Allgood v Blake (1872 – 1873) LR 8 Ex 160, 162 where he said that:
“The general rule is that, in construing a will, the Court is entitled to put itself in the position of the testator, and to consider all material facts and circumstances known to the testator with reference to which he is to be taken to have used the words in the will, and then to declare what is the intention evidenced by the words used with reference to those facts and circumstances which were (or ought to have been) in the mind of the testator when he used those words. …”
[15]Applying these principles to the construction of clause 11, it is common ground that the reference to the “current Court Order” is a reference to the 2007 Order.[16]The Claimants submit that the meaning of the clause is clear; what Mr Tish intended was that following his death his estate should take over responsibility for making payments to Revan and Arabella Tish equivalent to those set out in the 2007 Order. Thus they say that the effect of clause 11 is to create a gift of periodical payments to Revan and Arabella, commonly referred to as an annuity on the same terms as the 2007 Order, namely that: i) periodical payments of £11,000 per year per child should be made until that child reaches 18 or, if later, completes full-time tertiary education; ii) school fees and reasonable extras incurred should be paid for such school as they attend; and iii) the figure of £11,000 shall be increased annually in line with the Retail Prices Index.[17]In circumstances where an annuity is given without express words creating a charge to secure its payment, the annuity is charged upon the capital of the residuary estate: see Theobald on Wills (18th edn) para 18.019. Accordingly the executors are, the Claimants say, required to secure the gift to Revan and Arabella Tish by setting aside a sufficient sum from the residuary estate to ensure payment. It is only after their entitlement to payments under clause 11 has terminated that the remainder of the capital is distributable to Louise Tish as the beneficiary of the residuary estate.[18]In my judgment that is a clear and straightforward construction of clause 11. Mr Tish intended to make a gift to his two minor children which had the effect of carrying forward after his death the maintenance including the school fees that he had agreed to provide for them in the 2007 Order. There is nothing in the evidence put forward by the parties to indicate a contrary conclusion taking account of the factors listed by Lord Neuberger in Marley v Rawlings. I accept Mr Holland’s submission that the natural and ordinary meaning of words used namely “give” and “maintenance to be paid” and the reference to the 2007 Order point in favour of the simple construction. As regards the purpose of the Will, it is significant that apart from clause 11 there is nothing other than possibly the accumulated income of the £25,000 each from the sale of the Majorcan house that provides for them. They only share in the residuary estate if Louise Tish does not survive Mr Tish by 30 days. The accumulated income would not be enough to provide for their school fees and both Amanda and Louise Tish agree that Mr Tish was very proud of his children’s achievements at school and was keen for them to be privately educated. The purpose of the provision in the context of the disposition of the other elements in his estate is clearly, in my judgment, to make provision for his children’s continuing well-being and education. He knew at the time he was making his will that he was also applying to the Family Court to reduce the amount of maintenance under the 2007 Order. That is the reason for the reference to the possible reduction in maintenance. Those words were included to forestall any argument that a reference to “the current Court Order” was an annual gift of £11,000 adjusted for inflation, even if between the time of the making of the will and his death, the 2007 Order had been varied to reduce that sum. Common sense also points in favour of this construction of the clause.[19]The arguments put forward by Louise Tish seem to me far-fetched. The first point made by Mr Sterling is that because the Will “speaks from Mr Tish’s death” it means simply that Mr Tish gave to Revan and Arabella the maintenance payable under the 2007 Order as from his death, if any such maintenance was still payable. Since it is common ground between the parties that the 2007 Order ceased to have effect on his death pursuant to sections 28 and 29 of the Matrimonial Causes Act 1973, the clause has nothing to bite on and so is inoperative. The clause, Mr Sterling argues, is contingent upon a maintenance order being in place after Mr Tish’s death even though it was impossible for such an order to exist: see section 29(4) of the Matrimonial Causes Act 1973.[20]It seems to me very implausible that Mr Tish would deliberately include a provision in his Will that was in fact a gift of nothing. Mr Sterling pointed out that it is possible for a maintenance agreement between former spouses to provide for the continuation of payments under the agreement after the death of the deceased. In that situation, section 17 of the 1975 Act provides that an application can be made to the court to vary or revoke that agreement. But the 2007 Order is not a maintenance agreement and does not purport to survive Mr Tish’s death. Mr Tish did not have any reason at the time of the 2007 Order to think he would die prematurely. As to the suggestion that clause 11 was included merely to record a continuing obligation which Mr Tish mistakenly thought would survive his death, I can see no basis for assuming that he or his professional advisers had made such an error. Further, as Mr Holland pointed out, Mr Tish has made an earlier will in 2010 in which there was no reference to the 2007 Order.[21]Mr Sterling’s second argument was that clause 11 is void for uncertainty. He relies on the case of Anthony and anor v Donges and anor [1998] 2 FLR 775. There the will provided that if the testator’s wife survived him for 28 days he would give her such minimal part of his estate as she might be entitled to under English law for maintenance purposes. Lloyd J held that the clause had laid down no criteria for determining the amount to which the wife was entitled or alternatively that the criteria were self-contradictory. It was therefore void for uncertainty.[22]I do not see how that case assists Louise Tish. Clause 11 of the will clearly ties the gift to the amounts payable under the 2007 Order. The uncertainty only arises if one construes the reference to any reduction in maintenance as referring to a reduction being made by varying the 2007 Order after Mr Tish’s death. It is true that there is no mechanism for making any such reduction, given that the 2007 Order lapses on death. But it is clear to me that those words refer to any reduction by variation of the 2007 Order between the date of the will and his death. That is supported by the fact that, as I have described, Mr Tish was considering applying to the family court for such a variation at the time he made the will.[23]The third point put forward by Louise Tish is that because the 2007 Order recorded Mr Tish’s undertaking to keep paying the premiums for the Zurich policy, the obligations to pay maintenance and school fees under the 2007 Order were brought to an end by the payment out of that policy. For that reason there is nothing for clause 11 to carry forward. She argues that either the obligation to provide maintenance under the 2007 Order was fulfilled by the receipt of the Zurich policy monies or that those monies should be set off against the maintenance gift because the Zurich policy and the obligation to pay maintenance are “inextricably interlinked”.[24]It is true that the undertaking in the 2007 Order to keep the Zurich policy in force was to last during his and Amanda Tish’s joint lives or, if earlier, until the termination of his liability to pay Amanda and/or the children periodical payments and school fees under the later provisions of the Order. But I do not agree that that means that Mr Tish intended that the proceeds of that policy should be regarded as the totality of his provision in his will for Amanda Tish and their children. On the contrary, one can contrast the position of Amanda Tish for whom no provision is made in the will, with the position of the two children whose ongoing maintenance is the subject of clause 11. It appears to me that Mr Tish may have intended that any continuing entitlement on Amanda’s part should be satisfied by the payment out of the Zurich policy but that by the inclusion of clause 11 he expressed an intention to continue to provide for the children over and above the Zurich policy payment.[25]I therefore reject the arguments put forward by Louise Tish and hold that the effect of clause 11 is to give £11,000 per year to each of Revan and Arabella Tish until they reach the age of 18 or finish tertiary education (to first degree level), whichever is the later, such sum to be increased annually in accordance with the Retail Prices Index together with the school fees and reasonable extras at the school they attend.

Cited in 1 later judgment