What's in a name?

Sometimes a testator wishes to make a gift in his will conditional upon the satisfaction by the intended beneficiary of some condition, with the proviso that the gift will be forfeit in the event of a failure to satisfy that condition.

Conditions that are illegal, contrary to public policy, initially impossible of performance, repugnant to the estate previously given or purely in terrorem are void, but otherwise, provided that they are sufficiently certain, a testator is entitled to impose conditions upon his gifts.

On occasion, with a view to perpetuating his family name and reputation, a testator might require a beneficiary to adopt a particular surname or to bear particular arms, or might provide for forfeiture in the event that the beneficiary should discontinue to use the surname or arms.

While Lord Mansfield thought that the court might not permit forfeiture for breach of 'so silly a condition as this' (Gulliver d Corrie v Ashby [1766] 4 Barr 1929 at 1941) such so-called name-and-arms clauses are recognised as valid, provided that they are sufficiently certain. An example of such a clause was the subject of the recent decision of Proudman J in Howard v Howard-Lawson [2011] EWHC 63 (Ch).

Open arms

The court was required to determine, by way of a preliminary issue, whether or not on a true construction of the will dated 19 February 1930 of Philip John Canning Howard (the testator) who died on 22 April 1934, there had been a forfeiture by the defendant, Sir John Howard-Lawson, Bt, of his interest thereunder. The defendant was the great grandson of the testator. The claimant, Philip William Howard, was the son of the defendant.

The proceedings concerned that part of the testator's landed estate in Cumberland known as the Corby Estate. By his will and in the events that occurred, the testator devised the Corby Estate (after interests in favour of his wife and his daughter) to his grandson for life, with remainder to the defendant for life, with remainder to the claimant in tail male and with further remainders over.

The testator's only child was his daughter. Her sons by her first marriage (who included the testator's grandson referred to above) bore the surname Lawson. The testator was concerned to ensure the continuance of the association of his family name (Howard) and arms with his landed estate. Therefore, he included in his will a provision that made enjoyment of that estate by each successive tenant for life or tenant in tail conditional upon the adoption of the surname and arms of Howard.

Clause 8 of the testator's will, which was long and described by the judge as 'tortuous', provided (insofar as the defendant was concerned) that every person becoming entitled as tenant for life or as tenant in tail who 'does not at the time of becoming so entitled use and bear the surname and arms of Howard shall within one year of becoming entitled'¦ take use and bear'¦ in all deeds and writings which he'¦ shall sign and upon all occasions the surname of Howard'¦ and every such person if not having already borne and used the surname and arms of Howard shall apply for and endeavour to obtain the royal licence or take such other steps as may be requisite to authorise the user and bearing of the said surname and arms'.

The clause went on to provide for forfeiture in the event that any such person should refuse or neglect within the one-year period to take or use and bear such name and arms.

In Re Howard's Will Trusts [1961] 1 Ch 507, Wilberforce J had held that clause 8 of the will was not void for uncertainty and that, save insofar as it related to women married at the date of its operation, it was not contrary to public policy. As a result of that decision, the interest of the testator's grandson was forfeited on 5 January 1961 and the defendant thereupon became entitled as tenant for life.

Although he had used the name Howard on some occasions during the year after his interest fell in, the defendant (who appeared in person) accepted that the surviving contemporaneous documentary evidence showed that he had also continued to use the name Lawson on many formal occasions calling for the use of a surname.

It was common ground that the defendant had during that year applied to the College of Arms with a view to securing permission for his change of name and arms. The procedure was for the College of Arms to forward the application to the Home Office to establish the family pedigree and then to prepare the petition for submission to the Queen.

The application to the Home Office for permission to lodge the petition was made in October 1961 and permission was granted in November 1961. The petition was not sent to the defendant for signature until 15 February 1962 (shortly after the expiry of the one-year period). It was then forwarded to Garter King of Arms for onward transmission to the Home Office. The royal licence was signed on 26 April 1962 and issued on 3 May 1962. It appears that from and after that date the defendant used and bore the name and arms of Howard.

The claimant (who appeared by leading and junior counsel) argued that the defendant's interest had been forfeited. He submitted that clause 8 of the will imposed two separate and cumulative obligations, with the result that the defendant was obliged to adopt the name of Howard, and thereafter use it exclusively, during the first year, irrespective of the separate obligation imposed to obtain a royal licence to bear the Howard arms. The claimant also submitted that the defendant had failed to comply with the requirement to apply for and to endeavour to obtain a royal licence within the first year.

Avoiding forfeiture

The court held that it was settled law (see Davies v Lowndes [1835] 1 Bing (NC) 597) that there is no need to take any formal steps to use a surname, whereas arms can lawfully be assumed only by applying for a royal licence. However, the royal licence treats the name and arms as an entity and ties the grant of the use of the surname to the grant of the right to bear arms.

In the present case, the royal licence provided that the defendant might 'take use and bear the surname and arms of Howard only in lieu of his present surname and arms'. The draftsman of clause 8 would have had the terms of the royal licence in mind when setting out the conditions.

It was the royal licence that was the formal method stipulated by the draftsman for the change of surname to Howard as well as the right to bear the Howard arms. Once it was determined that a royal licence was the appropriate course, the defendant could not properly have used the Howard surname in anticipation of the licence.

It was only once lawful authority for the assumption of the name and arms had been acquired that the use of the name and the use of the arms became two separate requirements both which must be independently satisfied if a forfeiture by discontinuance is to be avoided. Therefore, before the issuance of the royal licence, the failure to use the Howard surname did not give rise to forfeiture.

It was also held that on a proper construction of clause 8 (which, in any event, ought to be construed against the person relying upon it) it was sufficient to avoid forfeiture for the defendant within the year to 'apply for and endeavour to obtain the royal licence or take such other steps as may be requisite to authorise the user and bearing of the said surname and arms'. It was not necessary that such user and bearing of the surname and arms should commence within the one-year period.

The clause did not require the beneficiary to endeavour to obtain the royal licence with the year; it merely required the beneficiary within the year to apply and endeavour to obtain the licence. In other words, all that was required was that the beneficiary should apply within the year and thereafter genuinely pursue the application.

It was doubtless the case that if the application, without being positively abandoned, were to be left in abeyance of a considerable period, it could be cogently argued that the beneficiary had neglected to endeavour to obtain the royal licence. But that was not the present case: the defendant had applied within the year and had used reasonable endeavours to obtain the licence and did in fact obtain it not long after the end of his year. In the circumstances, there was no forfeiture under the provisions of clause 8.