Probate actions—construction
Probate actions—construction

The following Wills & Probate practice note provides comprehensive and up to date legal information covering:

  • Probate actions—construction
  • The court of construction
  • Admissibility of evidence
  • General
  • In respect of language
  • In respect of identity
  • Latent and patent ambiguity

Construction claims are very common and there is a wealth of case law on the subject but the result is a complex and confusing area.

Essentially, such claims are brought in order for the court to determine the testator's intention as declared and apparent from the Will. In other words, the court will determine the meaning of the words used. Although it is possible for anyone interested in the Will to make a claim, it is generally the executors who will do so because they feel uncertainty as to the effectiveness of a provision or see another ambiguity.

The court of construction

This term applies to any court with the power within its jurisdiction to hear any question as to the meaning and effect of a testamentary nature. The Chancery Division has such jurisdiction, but so has the county court in those rare cases where the estate's value is below the limit of £30,000.

The functions of the probate and construction courts are regarded as quite distinct.However, while that appears to be old law, a recent case was decided, prior to the grant of probate, on a question of whether a later Will revoked an earlier one in construction proceedings rather than in a probate action.

Somewhat bizarrely, the court can authorise personal representatives to act on the basis of counsel's opinion on a matter of construction.

While a testator

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