Inconsistency & The Armchair Principle

Courts have stated the object of construing a will is to ascertain the Will maker’s intention as expressed in the will itself. The fundamental rule in construing the language of a will is to give effect to the intention of the Will maker, such intention being gathered from the language of the Will, read in the light of the circumstances in which the Will was made – i.e. what are the ‘expressed intentions’ of the Will maker.

The overriding consideration is the language used by the Will maker and the Court can neither ignore the plain meaning of words nor unnecessarily introduce words to give effect to an intention that is not expressed. The Court shall construe the Will on the basis of what is expressed in the terms of the Will.

There is a presumption, although not a strong one, against intestacy. If possible, on a fair and reasonable construction, the Will should be construed so it is a valid Will rather than leading to intestacy or partial intestacy. However, the Court cannot, in order to avoid intestacy, misconstrue the language of the Will.

The Will must be read as a whole, if particular expressions are found that are inconsistent with the intention, though not sufficient to control it, such expressions must be discarded or modified. If the intention of the Will maker cannot be found in the document itself, extrinsic evidence of circumstances may be given so the Court can try to find what the Will maker has written, but not what they intended to write.

The ‘armchair principle’, allows a court to consider the Will makers factual circumstances (their property, family, acquaintances and friends) when the will was made. But the armchair principle cannot be stretched to give words or phrases a meaning where essentially the court is making a fresh will.

The ‘armchair principle’ does not allow the Court to take the Willmaker’s intentions into account. If after the admission of this factual evidence the words still remain ambiguous, then except in the case of equivocation (where the language in the will may be applied equally to two or more people or two or more things) no further evidence will be admitted and the gift will be void for uncertainty.

In most jurisdictions legislation has been passed that expressly permits the use of extrinsic evidence, including evidence of a Will maker’s intention, to clarify a will.