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England and Wales High Court (Chancery Division) Decisions
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Cite as:  EWHC 3172 (Ch)
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Neutral Citation Number:  EWHC 3172 (Ch)
Claim No HC 14E02810
IN THE HIGH COURT OF JUSTICE
Mr John Baldwin QC
(sitting as a Judge of the Chancery Division)
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1. Carol Guthrie
- and -
1. Drew Brian Morel
2. Lazare James Morel
3. Deyo Morel
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Seth Cumming (instructed by Cooper Burnett) appeared on behalf of the Claimant.
Michael Jefferis (instructed by Hodkin & Company) appeared on behalf of the first and second Defendants.
Hearing date: 29 th October 2015
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1. This action concerns a bequest made in favour of the Claimant, Carol Guthrie, in the Will of Brian John Thomas Morel, deceased, dated 17 January 2003. The bequest is in these terms: "My property 87 Loma Del Rey, Alcadesa, Spain I bequeath to Carol Guthrie". Now, Mr Morel has never owned a property with the address 87 Loma Del Rey, Acadesa, Spain. He did, however, own two properties in Loma Del Rey, one with an address of 81 and the other with an address of 33. And the bequest in the Will immediately following that of 87 Loma Del Rey to Ms Guthrie was in relation to number 33. It is in these terms: "My property 33 Loma Del Rey, Alcadesa, Spain I bequeath equally to my three sons". So the issue in the action is whether the reference to 87 Loma Del Rey should be interpreted as meaning the property at 81 Loma Del Rey or not. The Defendants are the three sons of the deceased and they will benefit if there is a partial intestacy.
2. Mr Morel died on 20 July 2011 and one of his executors, Mr Alan Nicoll, obtained a grant of probate on 23 August 2012. There is evidence that Mr Nicoll accepted Ms Guthrie's contention as to the proper construction of the bequest in her favour but it is common ground that he did not do anything in furtherance thereof.
3. Sometime after the grant of probate, the first and second defendants became concerned about the delay in administering the estate and they applied for the removal of Mr Nicoll. On 23 August 2013 Master Bowles ordered that Mr Nicoll be removed and the defendants were appointed as administrators.
4. In July 2014 Ms Guthrie issued a Part 8 Claim for a declaration as to the true construction of the Will or, in the alternative, an order for rectification pursuant to section 20(1) of the Administration of Justice Act 1982. At the hearing before me Mr Cumming, counsel for Ms Guthrie, conceded that if he could not succeed on his construction argument then he could not get summary judgment on rectification and, accordingly, there is no reason for me to say any more about that aspect of the case.
5. Mr Cumming contends that the reference to 87 Loma Del Rey in the bequest in the Will in Ms Guthrie's favour was plainly intended to refer to the property at 81 Loma Del Rey. Ms Guthrie is confident of her position and makes this application pursuant to Part 24 of the CPR. The defendants resist her claim but only the first and second defendants have played a part in the action, the third defendant having failed to acknowledge service of the proceedings.
6. Mr Cumming contends it is clear that by his Will the deceased was intending to deal with all his property, including his two properties in Loma Del Rey, and that, as a matter of construction, the words in the Will "87 Loma Del Rey, Alcadesa, Spain" were intended to mean and should be understood to mean the property at 81 Loma Del Rey, Alcadesa, Spain. The defendants, on the other hand, contend that the Will is clear on its face and that it is evident that the property at 81 Loma Del Rey was not provided for in the Will; that accordingly there is a partial intestacy and, as they are the beneficiaries under the intestacy provisions, 81 Loma Del Rey should become theirs. In any event, contend the defendants, this matter is definitely not suitable for summary judgment and the matter should go to trial with full disclosure and cross examination.
7. Ms Guthrie has filed evidence as to the deceased's intentions based upon what the deceased said to her. The defendants do not accept the veracity of that evidence and contend that it should be the subject of cross examination at trial. In this circumstance Mr Cumming eschewed any reliance on this evidence and I have taken no account of it.
8. The approach to summary judgment applications was summarised by Lewison J in Easyair Ltd v Opal Telecom  EWHC 339 (Ch) in these terms:
15 As Ms Anderson QC rightly reminded me, the court must be careful before giving summary judgment on a claim. The correct approach on applications by defendants is, in my judgment, as follows:
i) The court must consider whether the claimant has a "realistic" as opposed to a "fanciful" prospect of success: Swain v Hillman  2 All ER 91;
ii) A "realistic" claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel  EWCA Civ 472 at 
iii) In reaching its conclusion the court must not conduct a "mini-trial": Swain v Hillman
iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents : ED & F Man Liquid Products v Patel at 
v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5)  EWCA Civ 550 ;
vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd  FSR 3;
vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd  EWCA Civ 725 .
9. The approach on applications by a Claimant is the same and I have reached my conclusions using the guidance in these passages.
10. The court's approach to the construction of Wills is the same as it is to the interpretation of contracts and other documents, as supplemented by the Administration of Justice Act 1982. It was summarised by Lord Neuberger in Marley v Rawlings  UKSC 2 in these terms:
Interpretation of wills
17 Until relatively recently, there were no statutory provisions relating to the proper approach to the interpretation of wills. The interpretation of wills was a matter for the courts, who, as is so often the way, tended (at least until very recently) to approach the issue detached from, and potentially differently from the approach adopted to the interpretation of other documents.
18 During the past 40 years, the House of Lords and Supreme Court have laid down the correct approach to the interpretation, or construction, of commercial contracts in a number of cases starting with Prenn v Simmonds  1 WLR 1381 and culminating in Rainy Sky SA v Kookmin Bank  1 WLR 2900 .
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. In this connection, see Prenn , at pp 1384-1386 and Reardon Smith Line Ltd v Yngvar Hansen-Tangen (trading as H E Hansen-Tangen)  1 WLR 989 , per Lord Wilberforce, Bank of Credit and Commerce International SA v Ali  1 AC 251 , para 8, per Lord Bingham of Cornhill, and the survey of more recent authorities in Rainy Sky , per Lord Clarke of Stone-cum-Ebony JSC, at paras 21-30.
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  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  CLC 1396 , 1400 that "courts 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: see Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd  AC 749 , per Lord Steyn at pp 770C-771D, and Lord Hoffmann at pp 779H-780F.
22 Another example of a unilateral document which is interpreted in the same way as a contract is a patent - see the approach adopted by Lord Diplock in Catnic Components Ltd v Hill & Smith Ltd  RPC 183 , 243, cited with approval, expanded, and applied in Kirin-Amgen at paras 27-32 by Lord Hoffmann. A notice and a patent are both documents intended by its originator to convey information, and so, too, is a will.
23 In my view, at least subject to any statutory provision to the contrary, the approach to the interpretation of contracts as set out in the cases discussed in para 19 above is therefore just as appropriate for wills as it is for other unilateral documents. This may well not be a particularly revolutionary conclusion in the light of the currently understood approach to the interpretation of wills (see eg Theobald on Wills , 17th ed (2010), chapter 15 and the recent supplement supports such an approach as indicated in Royal Society for the Prevention of Cruelty to Animals v Sharp  1 WLR 980 , paras 22, 31). Indeed, the well known suggestion of James LJ in Boyes v Cook (1880) 14 Ch D 53 , 56, that, when interpreting a will, the court should "place [itself] in [the testator's] arm-chair", is consistent with the approach of interpretation by reference to the factual context.
24 However, there is now a highly relevant statutory provision relating to the interpretation of wills, namely section 21 of the 1982 Act (" section 21 "). Section 21 is headed "Interpretation of wills - general rules as to evidence", and is in the following terms:
"(1) This section applies to a will - (a) in so far as any part of it is meaningless; (b) in so far as the language used in any part of it is ambiguous on the face of it; (c) in so far as evidence, other than evidence of the testator's intention, shows that the language used in any part of it is ambiguous in the light of surrounding circumstances.
"(2) In so far as this section applies to a will extrinsic evidence, including evidence of the testator's intention, may be admitted to assist in its interpretation."
25 In my view, section 21(1) confirms that a will should be interpreted in the same way as a contract, a notice or a patent, namely as summarised in para 19 above. In particular, section 21(1)(c) shows that "evidence" is admissible when construing a will, and that that includes the "surrounding circumstances". However, section 21(2) goes rather further. It indicates that, if one or more of the three requirements set out in section 21(1) is satisfied, then direct evidence of the testator's intention is admissible, in order to interpret the will in question.
26 Accordingly, as I see it, save where section 21(1) applies, a will is to be interpreted in the same way as any other document, but, in addition, in relation to a will, or a provision in a will, to which section 21(1) applies, it is possible to assist its interpretation by reference to evidence of the testator's actual intention (eg by reference to what he told the drafter of the will, or another person, or by what was in any notes he made or earlier drafts of the will which he may have approved or caused to be prepared).
11. With that guidance from the authorities, I turn to some of the facts to set the context in which the Will was made.
12. The deceased was a successful business man who was married to the mother of his three children, the defendants, until a divorce in 1998. According to the second defendant the deceased met Ms Guthrie in about 1998 at Moatlands Golf Club and they became friends. In 2001 the deceased purchased a property with Ms Guthrie, Glenmore Park House in Tunbridge Wells, both contributing to the purchase price. In 2002 the deceased bought two properties in Spain, 81 and 33 Loma Del Rey but he sold 33 Loma Del Rey at the end November 2004 because, according to the second defendant, he had no use for it and there were high maintenance fees. The Will was drafted and executed in 2003. In form, it is not a conventional Will but, aside from the dispute about 81, neither party has suggested that it does not deal with all of the deceased's assets. It is common ground that the Will was not typed by the deceased and there is no evidence of who did type it. The Claimant has said that she did not type it.
13. The deceased and Ms Guthrie continued their friendship and they were together when he died in 2011. There is evidence that Ms Guthrie's relationship with the defendants has been strained for some time. It has been said that the deceased was a careful man and that evidence has not been challenged.
14. The Will takes the form of a letter addressed to a solicitor, Mr David Wilson. It reads as follows:
Further to our conversation today regarding the setting up of a trust, I would be grateful if you would accept this letter as my full and final expression of wish in regards to my will, estate and the trust.
It basically falls into three categories:
1) A pension fund for which the beneficiaries ae entitled to lump sum tax-free disbursements
2) My personal estate
3) Newvell Precision Engineering Co Ltd and Elmore Supplies Ltd. The companies, their assets and properties are again exempt from death duties and outside my estate.
1) The trust relating to the Pension Fund... (various provisions - but in any event I was told the pension fund was held in trust and formed no part of the estate)
• My full share of Glenmore Park House I bequeath to Carol Guthrie
• My property 87 Loma Del Rey, Alcadesa, Spain I bequeath to Carol Guthrie
• My property 33 Loma Del Rey, Alcadesa, Spain I bequeath equally to my three sons
• My car I bequeath to my son Drew
• My personal effects I bequeath to my son Deyo
• My personal bank accounts I bequeath to my son Drew
• My time share property in Portugal I bequeath to Lazare
In respect of 33 Loma Del Rey, to avoid any conflicts of interests or disputes, the standard running costs such as insurance, gas, electricity, repairs, community charges etc shall be paid by the executors from the trust prior to each annual trust disbursement to avoid any disputes whatsoever
3) Newvell Precision Engineering ... [stated to be outside of the estate and recommendations as to how it is to be dealt with]
I appoint as my two executors: [details of two persons given]
The Pension Fund is being dealt with by [details given]
Witnessed: [names, addresses and signatures of two witnesses]
15. When I first saw this document I was concerned that it was not properly a Will at all. Indeed, it appears that Mr Wilson, when he received the letter from the deceased, does not seem to have thought it was a Will since he scribbled an attendance note of some matter on the front of it. However, the document of January 2003 has been admitted into probate and counsel for both parties accept that it is a Will and that the court's duty, either now or at the trial of this action, is to construe its terms so that it can be properly administered.
16. The claimant's case is simple. It is that this was a Will which was intended to deal with all of the deceased's assets and that, in these circumstances, the use of the expression "87 Loma Del Rey" must have been intended to be a reference to the deceased's property in Loma Del Rey which was not otherwise dealt with by the Will. Since 33 Loma Del Rey was otherwise dealt with, the reference to 87 Loma Del Rey was intended to be understood as meaning 81 Loma Del Rey. The claimant contended that if such were not the proper meaning to be attributed to the deceased's language then the deceased had failed in his purpose of writing his Will, which purpose was to deal with all his estate.
17. Mr Jefferis, counsel for the defendants, had two answers to the claimant's arguments but his primary submission was that this was not a matter suitable for summary judgment since the case was far from clear or straight forward. He contended that the case should go to trial and commented that instead of wasting a day on a summary judgment application, that day would have been better spent in trial (a comment which has little merit when made well into that day rather than at the earlier directions hearing). I will have in mind this primary submission as I address each of Mr Jefferis' answers
18. Mr Jefferis urged upon me that the task of the court is to seek the intention of the deceased from the language he used in the circumstances in which he found himself, i.e. in the appropriate context. There was no dispute that this was the right approach.
19. Mr Jefferis' first point was that the deceased did not intend the letter which he wrote to his solicitor to be his Will at all; that he merely intended the letter to be his instructions to his solicitor from which the solicitor would draft a Will for him to consider and sign if he so wished. Moreover, Mr Jefferis contended that I cannot fairly reach a conclusion on the point without full disclosure and cross examination.
20. In support of this argument Mr Jefferis relied not only upon the language of the 23 rd January letter but also on the fact that the deceased, by a letter also dated 23 January 2003, wrote to a Mr Bob Headley of D A Philips about his Pension Fund and attached his letter to Mr Wilson, referring to it as a draft.
21. Of course, if this argument is right, then none of the provisions of the Will can take effect and Mr Jefferis' response, which was to the effect that his clients are only contending that 81 Loma Del Rey falls into intestacy, does not meet the point.
22. Moreover, if this argument is right, then even if the language of the bequest were expressed as 81 Loma Del Rey instead of 87 Loma Del Rey, then the gift would still not take effect; the argument does not depend on there being any error in drafting, it goes to whether the Will is properly a Will at all.
23. Regarding disclosure, at a directions hearing on this application dated 9 February 2015, and pursuant to a request by the defendants for disclosure, Newey J made an order for disclosure of (1) any letter(s) of instruction by the deceased for a Will similar to the Will dated 17 January 2003; and (2) any copies of the Will which bear any amendments, dated between 2000 and 2012. That order was complied with on 3 March 2015. There were no documents which appear to be in the first mentioned class.
24. Mr Jefferis pointed out that the deceased kept a black book recording his affairs and that Ms Guthrie has said she has no idea where it might be. It does not seem to me that this takes the matter any further. All I know about it is that it was of pocket book size, contains some financial information and no one knows where it is.
25. Regarding cross examination, I asked Mr Jefferis who he wanted to cross examine and what he hoped to establish by the exercise. Mr Jefferis said that he wanted to cross examine Ms Guthrie as his clients did not believe her when she said that she first became aware of the Will when the deceased attempted to amend it in 2009. When I asked counsel what he hoped to establish by the cross examination he responded by saying he intended to establish that the deceased did not intend to bequeath 81 Loma Del Rey to Ms Guthrie and that she knew this to be so. He also said he hoped to elicit more information about how the letter of 17 January 2003 came to be drafted and what the deceased was trying to achieve.
26. In my judgment, Mr Jefferis' first point fails for two reasons.
27. The first reason is that probate has been granted in relation to the Will (and there has been no appeal against that grant) and I do not consider it is open to the administrators to contend that the document is not a Will at all. Moreover, the deceased is to be taken as intending the natural consequences of his acts. The consequence of the deceased writing, signing and having witnessed by two persons the document dated 17 January 2003 is that this document has been admitted to probate. Absent something extraordinary, of which there is nothing here, I do not think it is open to this court to conclude that, subjectively, the deceased did not intend this document to be a Will at all and, therefore, is of no effect.
28. The second reason why Mr Jefferis' first point fails is that his contentions about full disclosure (being something more than that which was ordered by Newey J and from which there was no appeal) and what he might elicit in cross examination of Ms Guthrie amount, in my judgment, to nothing more than Micawberism. There is insufficient basis for any contention that this action would be determined differently should it proceed to trial.
29. Mr Jefferis' second point in answer to the claim is that the deceased intended the words "87 Loma Del Rey" to refer to the property with that address and not to any other property such as, for example, 81 Loma Del Rey. Thus the submission is that the deceased intended that he die partially intestate and that Ms Guthrie not receive a bequest of 81 Loma Del Rey. As with his first point, Mr Jefferis submitted that full disclosure and cross examination of Ms Guthrie may shed further light on his point.
30. Mr Jefferis drew my attention to a number of matters which he said supported his second point. The first was the witness statement of the second defendant and in particular paragraph 47:
There remains much mystery as to why [the deceased] wrote the letter to his solicitor dated 17 January 2003 and had it witnessed the way that he did. [The deceased] did not type, and although this document appears to have been typed very competently, we have been unable to discover who typed it for him. His secretary has denied that she did so, and there is no copy of it on the office computer system. Our best guess is that in fact Carol [the Claimant] typed the document, although she denies knowing anything about its production at all (see [some correspondence]). I have already commented on the fact that it would be totally out of character for [the deceased] to have made an error on the address of 81 Loma Del Rey. We therefore wonder whether this letter was produced entirely for Carol's benefit, with [the deceased] knowing that he did not own 87 Loma Del Rey, but wanting to give Carol the idea that he was leaving her one of the Spanish Villas. (emphasis added)
31. It is evident from this passage that the proposition for which Mr Jefferis contends is mere surmise. Moreover, for it to work it requires Ms Guthrie to think that the reference to 87 Loma Del Rey is a reference to the holiday home she shared with the deceased, i.e. to 81 Loma Del Rey. There was no evidence to support the proposition that Ms Guthrie would be likely to be confused as to the address of the property she visited but Mr Jefferis said that, in fairness to his clients, he should have the opportunity to cross examine on the topic. He went on to point out that the property had only been purchased a few months prior to January 2003 and he speculated that Ms Guthrie may well not have appreciated its proper address.
32. Mr Jefferis also relied on some further matters to support the proposition that the deceased never intended to bequeath 81 Loma Del Rey to Ms Guthrie.
33. The first such matter was the evidence that the deceased was a very careful man. Accordingly, it was submitted, the document would not refer to 87 Loma Del Rey if the deceased were intending to refer to 81 Loma Del Rey. I regard this as a weak point. First, the document was not typed by the deceased, so if there is a careless typing error it is not an error of the deceased. Secondly, even careful people make errors. Thirdly, a careful man providing for the disposition of his estate by Will would not leave out of his Will a significant part of his estate with the consequence of a partial intestacy.
34. The second matter relied on is a copy of the Will which bears alterations which it is contended were made some time after January 2003 but before the date in 2004 when 33 Loma Del Rey was sold. There are two possibly relevant alterations to that copy. The first is a manuscript crossing out of 87 and its replacement with 81. On its face this is a clear recognition that the typing of the number 87 was a mistake for the number 81. The second alteration is a red line deletion of the whole of the line containing the bequest of a villa to Ms Guthrie.
35. There is no evidence at all regarding any purpose or rationale behind these later alterations to a copy of the Will. Mr Jefferis relies on the crossing out of the bequest to Ms Guthrie in 2004 to support the contention that in January 2003 the deceased did not intend to bequeath 81 Loma Del Rey to Ms Guthrie and that there should be further investigation of the matter, including why 87 was changed to 81, at a trial.
36. The next matter relied on is further alterations to copies of the Will, which alterations may have been made in October 2009. There is a copy of the Will which bears the date 18-10-09 and this copy has had tippexed out the bequests of both Spanish properties (i.e. 33 and 87 Loma Del Rey). Mr Jefferis surmised that 33 had been tippexed out because it had been sold and 87 tippexed out because the deceased was making clear that he was not bequeathing it (or 81) to Ms Guthrie. Apparently, Mr Jefferis surmised, the deceased had realised by 2009 that his ruse of purporting to convey 87 to Ms Guthrie so that 81 would fall on intestacy and not go to Ms Guthrie (despite him wishing her to think it would) might not work so he decided to delete the bequest all together.
37. This surmise does not, however, sit comfortably with a letter dated 8 October 2009 from the deceased to his Spanish lawyer saying that he needed his Spanish Will to be in place. That Spanish Will expressly bequeathed 81 Loma Del Rey to Ms Guthrie (but provided that if she ever sold the property then 60% of the proceeds go to various family members). This Spanish Will was never properly executed (an exercise which required the presence of a notary) and its provisions never came into effect, but its existence does undermine Mr Jefferis' surmise that the 2009 deletion on the copy of the January 2003 Will evidenced that the deceased never intended to bequeath 81 Loma Del Rey to Ms Guthrie.
38. There is another matter about these 2009 alterations which Mr Jefferis relies upon and it is in connection with manuscript amendments to the copy 2003 Will which are accepted to have been made by Ms Guthrie. These all relate to the bequest by the deceased of a green Mercedes which Ms Guthrie has contended was hers (and not the deceased's), having been given to her by her mother. There are three different versions of the manuscript alterations to the Will, each appearing on a different copy of the document. The first says "To Simon [Ms Guthrie's son] my old green Mercedes". The second says "To Simon the Old Green Mercedes", and the third says "To Simon Old Green Mercedes". Mr Jefferis contends that these amendments show that Ms Guthrie was lying when she says that the green Mercedes has always belonged to her and that they demonstrate her manipulative nature in that the three versions represent an attempt by her to ensure the green Mercedes was bequeathed to Simon, perhaps because the car did in fact belong to the deceased (possibly as a result of a swap for an Audi), in circumstances where it would not be discovered that she had said that the car was hers and not the deceased's.
39. There is no explanation in the evidence about the manuscript alterations made in 2009 regarding the wording of the bequest of the green Mercedes. In my judgment, this side show (for that is what I consider it is) is far from being sufficient to suggest there is a triable issue regarding the intention of the deceased as expressed in his Will in relation to the properties in Loma Del Rey.
40. I have not found these documents, which record alterations, made some time before late 2004 and in late 2009, to a copy of the Will to be of any assistance in reaching my conclusion as to the proper construction of the Will. Nor does their existence provide any real basis for the submission that this application should be dismissed and directions be given for the trial of case. They are insufficient to indicate to me that other material which might assist the defendants is likely to exist and be available at trial. The submissions based upon them are speculation without substance.
41. I have considered Mr Jefferis' points separately and cumulatively and, despite the courtesy and skill with which they were advanced, I have not found them at all persuasive. It seems to me to be clear that the deceased intended by his Will to deal with his entire estate and that he intended the words "My property 87 Loma Del Rey" to be understood as a reference to his villa at 81 Loma Del Rey and not to some other property which he did not own. In these circumstances the application succeeds. There is no need for the matter to go forward to trial as that would serve no purpose and not be a proportionate use of resources.