ADMISSIBILITY OF EVIDENCE

ADMISSIBILITY OF EVIDENCE 1. ARMCHAIR PRINCIPLE 4. EQUIVOCATION 2. IDENTITY OF BENEFICIARY 3. IDENTITY OF SUBJECT MATTER

1. ARMCHAIR PRINCIPLE Evidence as to the circumstances surrounding the testator when he made his Will has always been admissible as an aid in construction in cases of uncertainty or ambiguity Boyes V Cook James LJ: You place yourself, so to speak in the testator's armchair, and consider the circumstances by which he was surrounded when he made his will to assist you in arriving at his intention

2. IDENTITY OF BENEFICIARY The decided cases usually concern the identity of the beneficiary ( object) or subject matter. Charter V Charter the testator, T, by his will appointed "my son, Foster Charter" as his executor and gave him his residuary estate. He also directed him to pay annuity and allow maintenance to his mother "so long as they reside together in the same house". T had had a son named Forster Charter, but this son had died some years before the testator made his will and he could not be the son referred to. At the time the will was made, T had two sons, one named William Forster Charter and the other named Charles Charter. Probate was granted to William Forster Charter. Charles applied for revocation of the grant on the ground that he, Charles, was the person named in the will

2. IDENTITY OF BENEFICIARY Charter V Charter The judge admitted evidence of the surrounding circumstances when T made his will, ie that Charles was living at home with his parents and working on T's farm, that William had lived away from home for some years and seldom visited T, and that T did not call him "Forster" but always "William" or "Willie". The judge decided in favour of Charles. William appealed to the House of Lords. The four members were evenly divided. Lord Chelmsford and Lord Hatherly thought that the will was not uncertain or ambiguous. They thought that the reference to "Forster Charter" was a clear reference to William Forster Charter. But Lord Cairns and Lord Selborne upheld the decision of the judge. They considered that the provision in the will under which the executor was directed to pay the annuity and allow for maintenance to T's widow " so long as they reside together in the same house" did not apply to William and so there was uncertainty or ambiguity.

2. IDENTITY OF BENEFICIARY Charter V Charter Once uncertainty or ambiguity was established, evidence of the circumstances surrounding the testator at the time he made his will could be admitted under the armchair principle and this evidence pointed clearly to Charles. the case is very borderline. The House was evenly divided, so Lord Penzance's decision at first instance was affirmed. - Charles won

3. IDENTITY OF SUBJECT MATTER See Ricketts V Turquand

4. EQUIVOCATION Equivocation or sometimes called "latent ambiguity" arises if a description of the object or subject matter of a gift is applicable to 2 or more persons or things. Examples are: "To my son John" and he has two sons called John (Lord Cheyney's case) "To my nephew Arthur Murphy" where he has more than one nephew called Arthur Murphy There is an equivocation as to subject matter of a gift if he makes a gift of his "manor of Dale" and he has 2 manors of Dale, ie South Dale and North Dale.

Doe d. Westlake V Westlake. 4. EQUIVOCATION Doe d. Westlake V Westlake. In these situations, if the Will construed as a whole, 'with the aid of any evidence as to surrounding circumstances admissible under the armchair principle, shows to which of the 2 or more persons or things the testator was referring, there is no equivocation But if it does not, extrinsic evidence of the testator's dispositive intention, is admissible. This evidence may take of the instructions the testator gave for his Will or of declarations made by him as to what he intended to do or had done. If the equivocation cannot be resolved, the gift fails for uncertainty.