If a will dispute cannot be resolved it may be because the Testator's intentions are unclear

Interpreting the Testator’s Intentions: Tish v Olley

Challenging a will can be complicated when it is unclear what the testator’s intentions were by the wording of clauses in their will. This is a particularly difficult issue for wills compared with other legal documents for the obvious reason that the person whose intentions are under question has passed away by the time of the will dispute. The recent case of Tish and Others v Olley & Ors [2018] EWHC 1069 (Ch) presents an interesting example of a will dispute over the wording of a clause and the approach of the court to interpreting the Testator’s intentions.

The Facts of Tish v Olley

Raymond Tish was a partner at an accountancy firm. Mr Tish died of motor neuron disease. In 2007, he was divorced from his third wife Amanda Tish. They had two children together: Arabella and Revan Tish. A consent order followed the divorce, which provided that Mr Tish should make annual payments to Amanda Tish to support herself and her children. Mr Tish was to pay his former wife £11,000 per year for each of his children from their marriage. After he became ill, Mr Tish had applied to the courts to have the maintenance payments reduced because he was not working as a result of his condition, so his financial circumstances had changed.

When Mr Tish passed away, his will contained the provision:


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.

The Dispute

The claimants argued that the “current Court Order” was referring to the consent order from 2007, and that Mr Tish had intended to make an annual gift to each of his children for the value of the annual payments he had been making under that order.

Louise Tish, Mr Tish’s fourth wife, argued that the clause should be considered inoperative because a consent order cannot be enforceable against someone who is deceased. She also argued that the clause was invalid because it was uncertain. Furthermore, the defendants submitted that the life assurance policy that Mr Tish had taken with Zurich would pay Amanda Tish, and this money would cover maintenance for Mr Tish’s children.

The Testator’s intentions were unclear and lead to the court using contract principles to establish his true intention.

Applying Contract Principles

The case of Marley v Rawlings and anor [2015] AC 129 was used to interpret the clause. In Marley v Rawlings Lord Neuberger stated that

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

Lord Neuberger’s list of criteria sets out a contextual approach to the interpretation of contracts. He then went on to say:

the court takes the same approach to interpretation of unilateral notices as it takes to interpretation of contracts

Therefore, the factors including the natural meaning of the words, and common sense are applied directly to the interpretation of the testator’s intentions in a will dispute.

The Judgement

Lady Justice Rose interpreted the Maintenance clause in Tish v Olley in favour of the claimants: the clause was intending to make a gift of the value of the yearly sums that would have been paid under the 2007 consent order, £11,000 per year to his children. The judge also described Ms Louise Tish’s arguments as far-fetched, and stated, “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.”

A contract is between two or more parties and their intentions are separate, whereas the decisions in a will are made on the Testator’s intentions alone. This case can be read as an example of how the principles of contract law with regards to intention can be applied to wills to arrive at a logical resolution.

Challenging a will can be difficult and involve complex legal issues. If you are disappointed by a will and would like to take advice about the options open to you, why not complete a free claim assessment to get the ball rolling? We are expert will dispute solicitors, specialising in all aspects of challenging a will, and can usually act on a no win no fee basis.