Chris Belcher considers the Howard case

One of the attractions of being a trust lawyer is that the subject matter of the work can range from the cutting edge use of trusts in complex commercial transactions to the historic and sometimes esoteric world of ancient equitable doctrines.

The recent case of Howard v Howard-Lawson [2012] EWCA Civ 6 represents the latter end of the spectrum.

Life interest

At one time it was (relatively) common among the landed gentry to include a ‘names and arms’ clause in a will. This was done to preserve a grand old surname through the ages, and provided, in simple terms, that in order to inherit assets under a will, the beneficiary had to take on the name (i.e. surname) and arms (i.e. coat of arms) specified in the will. Often the entitlement was not an absolute one, but a life interest under a strict settlement.

Settled land and, even more so, names and arms clauses are now seen as being rather anachronistic, though during my career I have seen at least one names and arms clause in an otherwise ‘modern’ will. It just doesn’t seem to be the done thing any more to impose such a requirement on beneficiaries, and consequently case law on the interpretation of such clauses is hard to come by.

However the Howard case, recently decided in the Court of Appeal, has provided a modern take on the interpretation of names and arms clauses, and has made for some interesting bedtime reading for those practitioners interested in settled land and the more historic side of our area of law.

The issue in the Howard case was not the interpretation of a ‘modern’ will. The will in question, of the late Philip John Canning Howard, was dated 19 February 1930 and he had died in 1934. The question was whether his great-grandson, Sir John Howard-Lawson had complied with the terms of the names and arms clause. In other words, had he, “within a year” – for such was the requirement of this particular will clause - of becoming entitled to the Corby Settled Estate, adopted the Howard name and the Howard arms?

Added intrigue

To add to the intrigue, the claimant in the case was Sir John’s own son, Philip William Howard, the great-great-grandson of the testator. His case was that if his father had not complied with the names and arms clause, then his father would have forfeited any right to the Corby Settled Estate, which would instead be held in trust for him.

The saga of the Howard estates is a long-running one. Sir John himself only succeeded to the life tenancy following litigation decided in 1961 when Wilberforce J concluded that Sir John’s own father (the testator’s grandson) had himself forfeited his inheritance under the names and arms clause of the testator’s will. As a result it was common ground that Sir John had become entitled, as tenant for life of the Corby Settled Estate, on 5 January 1961.

But had he then complied with the names and arms clause within a year?

The testator had one child, a daughter (Sir John’s grandmother) who married Sir Henry Joseph Lawson Bt, and so her sons, and their sons (including Sir John) were born with the name Lawson. And so, on 5 January 1961, Sir John was known as John Lawson.

In July 1961 Sir John applied to the College of Arms for permission to change his name and arms to Howard. The College then had to forward the application to the Home Office (which it did in October 1961) to establish the family pedigree and prepare a petition to the Queen. In fact, the Royal Licence was not issued until May 1962, outside the one year deadline specified in the will for the taking of the names and arms.

Name calling

There was some debate as to whether Sir John had used the surname Howard during 1961. It was shown that he had continued to use the name Lawson on documentation, but he argued that it would have been disrespectful to the Crown to have used the surname Howard before the Royal Licence was signed.

The Court of Appeal considered at length to what extent one must assume a surname in order to inherit under a name and arms clause, and analysed the specific clause in some detail. It would have been wrong to use the arms before permission had been granted by the Crown, but the court concluded that it was sufficient for Sir John to have made some use of the surname of Howard and to have taken steps to apply for permission to use the Howard arms within one year of his becoming entitled.

Accordingly, the court found that, in the Howard case, there had been no forfeiture.

This case may be unlikely to have a major significance in the day-to-day lives of private client practitioners, but it is a happy reminder that the historic angle to our work lives can be relevant in these commercially-driven times.

Chris Belcher is a partner at Mills & Reeve and can be contacted on chris.belcher@mills-reeve.com. Follow Chris on twitter at @PC_Lawyer