Home Articles DEATH AND TAXES: THE LAST WILL AND TESTAMENT OF AN UNREASONABLE MAN

DEATH AND TAXES: THE LAST WILL AND TESTAMENT OF AN UNREASONABLE MAN

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It was the gifted Irish playwright George Bernard Shaw who said that the reasonable man adapts himself to the world. The unreasonable man adapts the world to himself. All progress depends upon the unreasonable man. At first sight Shaw’s aphorism seems outrageous but, on careful reflection, there is much truth in what he said.

Shaw was a master of the English language and it is ironic that his final English composition failed lamentably. His will set up elaborate trusts designed to encourage the replacement of the conventional alphabet of 26 letters by a more ample alphabet of at least 40 letters that would permit each sound to be represented by a letter of its own rather than groups of letters. Unfortunately these complex trusts ran into legal difficulties and in due course the matter came before Mr Justice Harman in 1957 in Re Shaw deceased (1957). 1 All E.R. 745 at 747-748.

This is what Judge Harman had to say:

“The testator, whatever his other qualifications, was the master of a pellucid style, and the reader embarks on his will confident of finding no difficulty in understanding the objects which the testator had in mind. This document, moreover, was evidently originally the work of a skilled equity draftsman. As such, I doubt not, it was easily to be understood, if not by the vulgar, at any rate by the initiate. Unfortunately the will bears ample internal evidence of being in part the testator’s own work. The two styles, as ever, make an unfortunate mixture. It is always a marriage of incompatibles: the delicate testamentary machinery devised by the conveyancer can but suffer when subjected to the cacoëthes scribendi (an incurable itch to write) of the author, even though the latter’s language, if it stood alone, might be a literary masterpiece.

This will is a long and complicated document, made on 12th June 1950, when the testator was already 94 years old, although it is fair to say that it is rather youthful exuberance than the circumspection of old age that mars its symmetry.”

The judge then examined the relevant clauses of the will, including one that provided for the destination of the funds if “the trusts shall fail through judicial decision”. The result is, said the judge, “that the alphabet trusts are, in my judgment, invalid and must fail. It seems their begetter suspected as much, hence his jibe about failure by judicial decision. I answer that it is not the fault of the law, but of the testator, who failed almost for the first time in his life to grasp the legal problem or to make up his mind what he wanted.”

Echoing the title of this column, there is a lesson here for all of us, save for the skilful few who are competent to draft the last will and testament of a client. There are countless legal disputes about the construction of wills and the law reports are full of judicial utterances.

Most wills, of course, are made long before the death-bed. In Ireland Lord Porter was once giving judgment in a case concerning the construction of a will. “In those circumstances,” he said, “I am perfectly certain that the testator intended the farm to go to his nephew James.” “Indeed he did not me Lord” cried a voice at the back of the court. “Bring forward that man!” ordered the judge and an attendant brought the culprit to the front of the court. “Who are you, Sir?” demanded Lord Porter. “Me Lord, I’m the testator and I never meant James to have the farm.”

He had left Ireland some years before and had never written home and so had been presumed to be dead. In such circumstances, writes R E Megarry in A New Miscellany-at-Law published by Hart Publishing (Oxford and Portland, Oregon) 2005, probate may be granted. Yet, statute apart, the law is clearly a nullity if the “deceased” is still alive.

There was a similar dramatic interruption some years ago in the United States Tax Court when the taxpayer was moved to shout at the judge. He called out: “As God is my judge, I do not owe this tax!” to which Murdock CJ replied: “He’s not. I am. You do. With costs!” – arguably the shortest judgment in the history of taxation.

On the subject of Ireland, it is not generally known that the old Four Courts in Dublin were at one time approached from a lane bearing the name “Hell” and in that lane many lawyers had their chambers. This led to advertisements of the nature: “To let. Furnished apartments in Hell. They are well suited for lawyers.” Any further comment would be superfluous and potentially defamatory of the legal profession.

Those readers who have appeared in Court, perhaps as a witness in the Special Court for Hearing Income Tax Appeals, will know that the arsenal of every advocate contains two bundles of adjectives for witnesses – such ones as ‘reluctant’, ‘unbiased’, ‘disinterested’, and ‘honest’ are reserved for his own witnesses. Others such as ‘partisan’, ‘eager’, ‘interested’, even ‘perjured’ for those witnesses called by his adversary.

But as R E Megarry points out, peril lies in wait if these descriptions are exaggerated. In a medical negligence case, which had enormous income tax implications, counsel characterised one of his witnesses, who was a Professor of Medicine, as ‘Olympian’. He was to regret the description when, in summing up, the judge said: “My recollection of classical mythology is that the gods on Olympus were no strangers to error”.

Adverting to brevity in judgments, there is the classic case of Sidcup Building Estates heard in England in 1936. Counsel for defendants dream of judgments such as this. Valentine Holmes was counsel for the defendant.

Lord Hewart, C.J. :  We need not trouble you Mr Valentine Holmes. Mr Meston has put his case such as it is very clearly. It really comes to this, that if this case were different from what it is he might succeed. But as this case is what it is this appeal must be dismissed.

Du Parcq, J :  I agree.

 

Goddard, J  :  I agree.

 

Needless to say, this was not an income tax case.

 

Penelope Webb, who for some years has worked in industry, is a former tax partner of a large international accounting firm.

 

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