IHTM12054 - Succession: Wills: Construction of Wills: Inconsistent clauses

There is a general rule that, if two parts of a Will are inconsistent with each other, the later clause should succeed and the earlier fail. But, in practice, the courts are reluctant to apply this rule and there are certain circumstances where it will not apply. These are:

• where looking at the Will as a whole it appears that the testator intended the first clause to apply
• where following the rule will result in an intestacy.
• where a gift of the same thing has been made to two persons then both will take some interest in that thing - for instance as joint tenants or in succession
• if one gift is in the Will and the other in a codicil the court will usually conclude that the codicil has revoked the Will in respect of that particular gift.

The court will not take any external evidence (IHTM12055) of a testator’s (IHTM12001) intention into account where there is an inconsistency. Extrinsic evidence will only be taken into account where there is ambiguity.