March 5, 2012

Names and Arms Clauses: Inheritance, Adoption and Family Disputes

An ancient tradition of expecting your heir to take your name and coat of arms has led to a modern legal dispute over a fortune, says Chris Belcher of Mills & Reeve

OCCASIONALLY THE PRESS enjoys covering legal cases which sound like they have come straight from a Dickens novel. They concern matters such as ‘chancel repairs’ or ‘equitable doctrines’ or ‘names and arms clauses’. But how relevant are these issues to modern day individuals?

The recent case of Howard v Howard-Lawson was a prime example of an old legal practice being argued in the Court of Appeal.

At one time it was (relatively) common among the 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 that in order to inherit assets under a Will, the beneficiary had to take on the name (ie surname) and arms (ie coat of arms) specified in the Will. Often the entitlement was not an absolute one, but a life interest under an old-fashioned trust.

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’ of becoming entitled to the Corby Settled Estate, adopted the Howard name and the Howard arms?

To add further 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 key factor was that during 1961, Sir John began using the name Howard, and in July 1961 he 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, even though 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, the Court of Appeal held that he had done enough to comply with the names and arms clause.

Despite the fact that the case raked over matters from some 50 years ago, it had real importance for the protagonists. Similarly, there are cases involving chancel repairs which are of real relevance. Take that of Mr and Mrs Wallbank who in 2003 were ordered to pay a £100,000 bill for repairs to a church over 100 miles from their home. In that case the Law Lords described the law as ‘arcane and unsatisfactory’, but were powerless to prevent the claim by the church because the liability for chancel repairs had been attached to the Wallbanks’ property.

While it might not always be possible to avoid the operation of arcane laws, it is always worth making sure that your wills, trusts and property title deeds are regularly reviewed to prevent unexpected surprises.