- Interpreting wishes and arguing maintenance: Tish v Olley
- July 4, 2018 | Author: Stephen Richards
- Law Firm: Withers LLP - London Office
Unless drafted appropriately, divorce orders which require a parent to maintain or contribute towards their children's financial needs will end on death. There are various ways to address such an outcome which is likely to lead to claims, for example under the Inheritance (Provision for Family and Dependants) Act 1975.
In a sorry tale of step-mother against her step-children, the deceased father of the children wanted to ensure provision for them by including a clause in his will that provided for his financial support to continue until they reached 18 or stopped education.
Ray and Amanda Tish married in 1993 and had two children, Revan and Arabella.
In 2005, Raymond and Amanda's marriage broke down and, at the end of 2007, they divorced.
Under the divorce order, Ray was ordered:
- to pay Amanda £18,000 a year;
- to pay £11,000 a year for each of Revan and Arabella until they turn 18 or complete tertiary education (adjusted in line with inflation);
- to pay Amanda all school fees and reasonable extras incurred at school; and
- to maintain his Zurich life insurance policy for as long as was required to make the payments above.
On 28 February 2014, after his marriage to Louise Tish, Ray made a will.
In this will, he left £25,000 from the sale of his Majorcan house to each of Revan and Arabella. He also left them precious personal items. The only other financial provision in the will for Revan and Arabella was the following:
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 rest of Ray's estate passed to Louise.
After his death, Louise argued that nothing passed to his children under the maintenance clause of the will. She said that because divorce orders automatically end on death, Ray had made a 'gift of nothing' to his children as his obligations under the court order had ended. She also argued that the clause in the will had no meaning (and so was not effective) because it was too unclear what he was giving by it. Finally, she argued that the children should not receive anything under this clause because Ray's obligations under the divorce order were satisfied by the Zurich insurance policy pay out.
Amanda, Revan and Arabella argued that the clause meant that Ray's estate should make the payments for the children that Ray was ordered to make in the divorce order. The Judge agreed and said that this was 'a clear and straightforward construction of [the] clause'. He said 'the arguments put forward by Louise Tish seem to me far-fetched'.
Even though the Zurich insurance policy was in place for Ray to pay his maintenance obligations to his wife and children, the Judge decided that by including maintenance in his will, Ray 'expressed an intention to continue to provide for the children over and above the Zurich policy payment'.
In considering the issue before her the Judge reiterated that in interpreting a will, the Court must try to find out what the testator intended the will to say. It does this by identifying the meaning of the words that are causing difficulty, by looking at them in their 'documentary, factual and commercial context'.