Olivia Priscilla James v Jonathan Sylvester James [2026] EWHC 2190 (Ch)

NCN [2026] EWHC 2190 (Ch)Case No PT-2025-000957IN THE HIGH COURT OF JUSTICECHANCERY DIVISIONBUSINESS AND PROPERTY COURTS OF ENGLAND AND WALESVenue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 26 August 2026
Before
MASTER MCQUAIL
Between
Olivia Priscilla JamesClaimantJonathan Sylvester JamesDefendant
Mr Tomos Rees (instructed by Myerson Limited) for ClaimantThe Defendant in person for in personHearing Hearing date: 6 July 2026
Approved JudgmentThis judgment was handed down at 2pm on 26 August 2026 and by release to the National Archives.

Master McQuail:

[1]This judgment concerns the construction of clause 9 of the will dated 15 July 1994 (the Will) of Constantia James who died on 26 February 2023 (the Deceased). That issue arises within a Part 8 Claim dated 18 September 2025 brought by the claimant, Olivia Priscilla James, seeking relief including the removal of the defendant, Jonathan Sylvester James, as executor of the Deceased’s estate pursuant to section 50 of the Administration of Justice Act 1982. The claimant has standing to bring that removal application only if she is a beneficiary under clause 9 of the Will.[2]At the first hearing of the Part 8 Claim I raised the issue of construction and gave directions how it should be determined. In accordance with those directions the claimant brought an application dated 17 March 2026 seeking the court’s determination of the issue. The claimant was directed to accompany such application by any evidence that she wished to rely on. The evidence was contained in the application form itself and was to the effect that enquiries had been made of the solicitors responsible for drafting the will who had confirmed that they retained no file.[3]On 8 April 2026 the defendant filed what he described as “Defendant Response to Court Order of 18th February & Subsequent Submissions by Claimant 18th March 2026.” The document contained submissions about the construction of the Will as well as a submission that because the claimant had not filed factual evidence the claim be dismissed. The document also purported to comply with the direction that the defendant provide certain information about the estate. The document was not signed and was not verified by statement of truth.[4]At the start of the hearing the defendant made an application for an adjournment essentially on the basis that he wished to obtain legal advice. The defendant explained that he had been under the misapprehension that the material to be filed in support of the claimant’s application in March would include the claimant’s legal argument and that he was taken by surprise by the content of Mr Rees’ skeleton argument containing legal argument that had not been previously foreshadowed. For reasons given in a short judgment delivered at the hearing I refused that application.

The Issue

[5]The Issue Clause 9 of the Will provides as follows:
“9. MY TRUSTEES shall hold my residuary estate as to both capital and income upon trust for the said MARK ANTHONY JAMES and JONATHAN SYLVESTER1 JAMES as shall survive me and attain the age of Twenty One years and if more than one in equal shares PROVIDED THAT if the said MARK ANTHONY JAMES and JONATHAN SYLVESTER JAMES shall die in my lifetime or after my death before attaining a vested interest leaving issue who attain the age of Twenty One years such issue shall take by substitution and if more than one in equal shares per stirpes the share of my residuary estate which the said MARK ANTHONY JAMES and JONATHAN SYLVESTER JAMES would have taken if they had survived me and attained a vested interest but so that no issue shall take whose parent is alive and so capable of taking”
[6]Mark Anthony James (Mark) and the defendant were the Deceased’s only children shared with her late husband, Ainsley Blondell James. Mark died on 19 September 2017. He was survived by his only child, the claimant. The Deceased died on 26 February 2023. The defendant was living at the date of the Deceased's death; he has a number of children.[7]In those circumstances the question that arises is whether the claimant is entitled to take the share in residue which Mark would otherwise have taken under clause 9 had he survived the Deceased.

The Key Legal Principles Applicable to the Construction of Clause 9

[8]The Key Legal Principles Applicable to the Construction of Clause 9 The modern approach to the construction of wills is explained by the Supreme Court in Marley v Rawlings [2015] AC 129. The task of the court is to ascertain the intention of the testator from the words employed, construed in their documentary and factual context.[9]Section 33(1) of the Wills Act 1837 provides that:
“(1) Where— (a) a will contains a devise or bequest to a child or remoter descendant of the testator; and (b) the intended beneficiary dies before the testator, leaving issue; and (c) issue of the intended beneficiary are living at the testator’s death, then, unless a contrary intention appears by the will, the devise or bequest shall take effect as a devise or bequest to the issue living at the testator’s death.”
[10]Extrinsic evidence is admissible to interpret a will pursuant to section 21 of the Administration of Justice Act 1982 if:(i) any part of the will is meaningless; or(ii) the language used in any part of the will is ambiguous on the face of the will; or(iii) evidence shows that the language used in any part of the will is ambiguous in the light of the surrounding circumstances.

The Positions of the Parties

[11]The claimant contends that the requisite conditions for the application of section 33 are satisfied:(i) clause 9 contains a gift to the Deceased's child, Mark;(ii) Mark predeceased the Deceased; and the claimant, his daughter, survived the Deceased Accordingly the critical question is whether clause 9 demonstrates a contrary intention sufficient to exclude the operation of section 33. The claimant says that there is no ambiguity which would allow the admission of extrinsic evidence, even if any such evidence existed.[12]The defendant contends that the claimant has no entitlement because he is the sole surviving named beneficiary of clause 9. The defendant has not filed any evidence in a witness statement signed by a statement of truth either in the main Part 8 Claim or in opposition to the application, but in submissions referred to his own understanding of the Deceased’s intentions.

The Claimant’s Submissions

[13]The Claimant’s Submissions Mr Rees submitted that in order to demonstrate a “contrary intention” it is not necessary to demonstrate a conscious decision to exclude the effect of section 33 of the Wills Act 1837 (Re Meredith [1924] 2 Ch 552). A contrary intention will be established if the language of the will demonstrates that a gift should not take effect as a gift to the living issue of a deceased beneficiary: Burns v Bean [2021] EWHC 838 (Ch) at [14].[14]Mr Rees went on to discuss a series of cases dealing with the application of section 33 and whether particular words evince a contrary intention.[15]In Ling v Ling [2002] WTLR 553, the relevant clause provided:
“If my said Wife shall die in my lifetime or shall fail to survive me by the period aforesaid, the Bank shall stand possessed of my residuary estate UPON TRUST for all or any of my children or child living at my death or at the expiry of one calendar month therefrom who attain or shall then have attained the age of twenty one years and if more than one then as tenants in common in equal shares absolutely.”
[16]Etherton J (as he then was) held at [27] that the words “living at my death” did not show a contrary intention to exclude the effect of section 33(2). The words had been included to expressly state what would otherwise be implicit, namely that a class is usually composed of those members, if any, existing at the death of the testator.[17]In Rainbird v Smith [2012] EWHC 4276 (Ch) the relevant wording was this:
“I give my estate (including any property over which I may have general power of appointment or disposition by Will) to my Trustees Upon Trust … (c) subject thereto hold the residue remaining and the income thereof (“my Residuary Estate”) UPON TRUST for such of them my Daughters, the said JACQUELINE ANNE RAINBIRD JANET JONES … and GWENDOLINE SMITH … as shall survive me and if more than one in equal shares absolutely.”
[18]The claim was an unopposed claim for rectification. John Baldwin QC (sitting as Deputy High Court Judge) held that it was necessary to construe the will before considering rectification. The judge considered that the wording excluded the effect of section 33 on the basis that the testator intended her estate to be divided among her surviving children and the expression “if more than one, in equal shares” showed an intention that if one daughter predeceased then the shares of the other daughters would be increased: [9]–[10]. The judge distinguished Ling v Ling on the basis that the will in that case was “very poorly drafted, was awkward and grammatically inept”: [11]–[14].[19]In the Rainbird case there was also extrinsic evidence, described as “strikingly clear”, that the testator had changed her mind between giving instructions for the will and signing it and only wished her surviving children to inherit: [19].[20]In Hives v Machin [2017] EWHC 1414 (Ch), Timothy Fancourt QC (as he then was) considered the following words: “I GIVE DEVISE AND BEQUEATH all my remaining property … for such of my son PETER … my said son ERIC … and my said son CHRISTOPHER … who shall be living at the date of my death and if more than one in equal shares absolutely” in clause 5 of the will in that case did not demonstrate a contrary intention to exclude section 33 of the Wills Act 1837.[21]The Deputy Judge concluded at [28]–[30] that(a) the words of the clause provided that the residuary estate would be shared equally by such of the testatrix’s three sons who survived her, but said nothing about whether section 33 should be excluded;(b) the effect of the clause was that on the death of one son the other two sons would be presumptively entitled to a half share each of residue, but subject to further provision made by the testator before death and the operation of section 33;(c) there was nothing in the clause showing that surviving issue could not take by substitution; and(d) the words used in the clause were a standard form of bequest.[22]In Burns v Bean [2021] EWHC 838 (Ch), Master Clark considered the following words: “My Trustees shall then distribute the balance remaining equally among all my children who are alive at my death” did not show a contrary intention to the effect that section 33 should not apply. Master Clark held that it was necessary to show that the language of the will showed that the gift should not take effect as a gift to the living issue of the deceased beneficiary: [29]– [30].[23]Master Clark said at [45] that the analysis and reasoning in Ling v Ling and Hives v Machin were compelling and preferable to that in Rainbird. At [19] Master Clark approved the comment in Hives v Machin at [38] that the distinction drawn in Rainbird between the facts in that case and Ling was “unconvincing”.[24]In Re Brackstone PT–2020–000246, Deputy Master Lloyd considered these words:
“I GIVE DEVISE AND BEQUEATH all of my real and personal property whatsoever and wherever situate to my trustees upon trust… for such of my children as shall survive me in equal shares namely SANDRA MAXINE EVEREST of and DAVID OWEN BRACKSTONE of…”
[25]The judge noted at [8] that the effect of section 33 is that a testator must “contract out, not contract in”. The court must be satisfied that there is a positive intention to specifically exclude section 33.[26]The judge considered the authorities and described Rainbird as a “curious case” at [13]. He held that the wording of the will before him was not sufficient to exclude section 33, consistently with Ling v Ling and Hives v Machin, which the judge described as “to be preferred to Rainbird”: [14].[27]Mr Rees submitted that I too should follow the Ling v Ling and Hives v Machin cases and conclude that words of clause 9 do not exclude the operation of section 33.

The Defendant’s Submissions

[28]The Defendant’s Submissions The Defendant accepted that Marley v Rawlings explains how wills are to be construed but emphasised that in construing a will the Court must have regard to the armchair principle. He explained that in 1994 the beneficiaries of clause 9 were both alive and at that time neither had children. He explained that more recently the Deceased and the claimant had fallen out so that the Deceased would not have wanted the claimant to benefit from her estate.[29]The “armchair principle” was 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. …”
[30]In support of his submission about the armchair principle the defendant relied on a number of cases which he explained he had found with the assistance of AI. The cases were Royal Society v Robinson [2015] EWHC 3442 (Ch), Tish v Olley [2018] EWHC 1069 (Ch), Wales v Dixon [2020] EWHC 1979 (Ch), Re Nodes; Eade v Hogg [2021] EWHC 1057 (Ch) and Wilkinson v Kirkham [2026] EWHC 1006 (Ch).[31]The defendant had not supplied any list or bundle of authorities to the Court or to the claimant’s counsel. In order to ensure that the relevance of the authorities could be properly considered I directed that Mr Rees put in short written submissions shortly after the hearing concerning these cases and that the defendant have an opportunity to reply to those submissions within a short period thereafter. I have considered the submissions of Mr Rees dated 8 July and those of the defendant which were CE filed on 17 July 2026.[32]The issue in Royal Society v Robinson [2015] EWHC 3442 (Ch) was whether a reference to assets in the United Kingdom included assets in the Channel Islands and the Isle of Man ([3]–[4]).[33]Tish v Olley [2018] EWHC 1069 (Ch) concerned the interpretation of a clause by which the testator gave to “my daughter … and my son … as shall survive me free of all taxes Maintenance to be paid in relation to the current Court Order …”. Having considered the evidence the court concluded that the effect of the words was to carry forward his maintenance obligation by a gift of periodical payments to replicate it notwithstanding that the effect of the Order would cease on death.[34]In Wales v Dixon [2020] EWHC 1979 (Ch) the dispute was whether the wording of the will should be construed to refer to nephews and nieces by affinity as well as by consanguinity.[35]In Re Nodes; Eade v Hogg [2021] EWHC 1057 (Ch) the issue was the meaning of words describing the extent to which a shareholding was capable of being subject of a power of appointment.[36]In Wilkinson v Kirkham [2026] EWHC 1006 (Ch) the issue was how in the circumstances of the case a gift to the “daughter” of a cousin, who in fact had two daughters should be construed.[37]As the defendant submits these cases provide examples of the application of the armchair principle. However, I agree with Mr Rees’ submissions that none of these cases assist the court in interpreting clause 9 of the Will and the question whether a contrary intention is expressed so as to exclude the effect of section 33. To the extent that the court in any of these cases admitted extrinsic evidence because of ambiguity that has no bearing on the present case unless there is an ambiguity.

Discussion and Conclusion

[38]Discussion and Conclusion I am not satisfied that the defendant has identified any ambiguity in clause 9 and his post-hearing submissions expressly disavows any ambiguity. Even if there were any ambiguity in clause 9 the defendant has not identified any admissible extrinsic evidence about the Deceased’s intentions in 1994. Even if evidence to establish that the Deceased had fallen out with the claimant in recent years had been adduced, it could not inform the construction of clause 9. The clause creates a substitutionary mechanism for failed dispositions by the clause that has no reference to the cordiality of relationships between the Deceased and any of the possible beneficiaries and was, in any event, signed long before the claimant was born. Further, to the extent that the defendant sought to rely in his submissions about the prospect from the testator’s armchair, it was that prospect at the end of the Deceased’s life with which he wished the court to be concerned, and not the prospect in 1994 which is when the language used in the Will must be construed.[39]In considering the section 33 question I derive particular assistance from Ling v Ling, Hives v Machin and Burns v Bean. In those cases expressions such as “survive me”, “living at my death”, or equivalent survivorship wording were held not, without more, to demonstrate the requisite contrary intention.[40]Although Rainbird reached a different conclusion on its particular facts, subsequent decisions have treated it as exceptional and have preferred the reasoning in Ling v Ling. In both Hives v Machin and Burns v Bean the approach in Ling was considered compelling. The same approach was followed in Re Brackstone.[41]Applying those authorities, I do not consider that the words “as shall survive me” in clause 9 are sufficient to exclude the operation of section 33. Those words identify the primary beneficiaries who are to take if living at the Deceased’s death. They neither expressly state, nor necessarily imply, that the issue of a deceased child is not to benefit.[42]In my judgment the proviso in the second part of clause 9 strengthens rather than weakens that conclusion. Rather than demonstrating an intention to exclude substitutionary gifts to descendants, the proviso is itself concerned with issue taking by substitution in particular circumstances.[43]Whether the proviso is construed as applying upon the death of either son or only upon the death of both of them, it does not in my judgment disclose a positive intention that the issue of a deceased child should be excluded from the statutory beneficence afforded by section 33. At most, it makes express provision for certain situations and remains silent as to the situation that has in fact arisen. Silence is not enough to exclude the effect of section 33.[44]There is no admissible extrinsic evidence which would justify a different conclusion. The will file no longer exists, and there is no evidence capable of establishing a specific intention inconsistent with the operation of section 33.[45]Standing back and considering the Will as a whole, I am unable to identify any wording which clearly indicates that the Deceased intended the share of a deceased child of hers to accrue entirely to the surviving child and not to that deceased child's issue. In those circumstances I conclude that the statutory substitution effected by section 33 operates.[46]I will grant declaratory relief accordingly.[47]A further two and a half hour hearing will be listed on 26 August at 2pm at which a final version of this judgment will be handed down, any consequential matters dealt with and the Part 8 Claim for removal will be disposed of.