IHTM12054 - Construction of wills: inconsistent clauses

There is a general rule that if two parts of a will are mutually inconsistent then the later clause should prevail. However, the courts are reluctant to apply this rule due to its arbitrary nature and there are certain circumstances in which it will not apply

• where upon construction of the will as a whole it appears that the testator intended the first clause to apply
• if following the rule will result in an intestacy then the former clause is to be preferred
• 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 to that extent the codicil has revoked the will

The court will not admit extrinsic evidence ( IHTM12055) of a testator’s ( IHTM12001) intention where there is an inconsistency. Extrinsic evidence will only be admitted where there is an ambiguity.