The practical application of the doctrine of election was recently clarified. This applies when someone gifts property to a beneficiary, but by the same instrument gives certain property belonging to that same beneficiary to a third party.

In this case, the mother’s will was unclear and she made specific gifts of her assets, save for her interest in the property. She left half her residuary estate to the claimant and half to the siblings. The question was whether she had purported to dispose of her half interest in the property or the whole of it. The house had been held by the claimant’s parents as beneficial joint tenants and on the father’s death the mother become the sole legal and beneficial owner.

The CA said this was a case of latent ambiguity and allowed fresh evidence under the AJA 1982 in the form of a solicitor’s attendance note. This clearly showed she was disposing of the whole of the house. She had purported to dispose of half the claimant’s share and given half of her existing share to him, and equity directed that this was a case for election. Here, the result was the claimant was only going to get half the house whichever way he elected. Frear v Frear [2008] EWCA Civ 1320.