The court considerd the interpretation of a Names and Arms clause in a will under which the testator directed that any person becoming entitled to a particular gift under the will must: ‘take upon himself and use upon all occasions the surname of Inigo-Jones only and quarter the arms of Inigo-Jones with his or her own family arms and shall within the space of one year next after the period hereinbefore prescribed apply for and endeavour to obtain a proper licence from the Crown or take such other means as may be requisite to enable him or her to take use and bear the surname of Inigo-Jones only and arms of Inigo-Jones’. If the beneficiary failed to do so or should ‘discontinue to take or use such surname and arms’ the gift should fail. It was said that the gift failed for uncertainty.
Upjohn LJ said: ‘Many must be familiar with and have experience of persons who, for good reason, have changed their names. There is no difficulty or uncertainty about it. The operation is one which necessarily takes time. Professional and business associates, tradesmen and friends, have to be informed of the change of name; that will take some time but in the end, when some time has elapsed, the person who was formerly ordinarily known as ‘X’ becomes ordinarily known as ‘Y’. He has effectively changed his name. That can be done easily within the year laid down in the clauses in the will. He must then use that name on all occasions. Of course, mistakes of forgetfulness will be made to begin with, and, with all respect to the opinion of Wilberforce J in Re Howard’s Will Trusts [1961] Ch 507, 516, I would think such lapses, even after the expiration of the year, should be treated as de minimis . .
It is important to note that the assumption of a new name in fact involves at the same time a discontinuance or disuse of the old name. When ‘X’ has assumed the name ‘Y’, he has thereby discontinued or disused the name of ‘X’. He cannot sensibly either be nameless, on the one hand, or use two surnames (apart from a pen name or something of that sort), on the other. I do not think anyone could be under any misapprehension as to what he has to do if he is told in effect that if he desires to enjoy certain estates, he is to change his name from ‘X’ to ‘Y’.’
Lord Evershed MR said as to the failure of a conditional gift that it does not follow that: ‘the language used must be of so exactly precise a character that no question can ever sensibly thereafter arise on the particular facts as they have occurred, whether, according to the terms of the instrument, a divesting has or has not taken place . . So long as the concept expressed in the will … is clear and can be precisely formulated, then it is no objection to the validity of the clause that on occasion its application may give rise to difficulty.’
Judges:
Lord Evershed MR, Upton LJJ
Citations:
[1962] Ch 643
Jurisdiction:
England and Wales
Cited by:
Cited – Howard v Howard-Lawson Bt CA 18-Jan-2012
The parties disputed the effect of a names and arms clause in a will.
Held: The gift did not fail. ‘The submission that the testator would have been concerned to have the heir take up and use the Howard name as soon as possible is in my . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate
Updated: 06 May 2022; Ref: scu.450445