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‘Qualification Clause’ Challenge Goes to Appeal

20 April 2012

A family feud will now be decided by the Supreme Court following the announcement that the decision of the Court of Appeal is going to be appealed by the loser.

The case arose because of a ‘qualification clause’ put in a will. In order to make sure his family name continued, the patriarch of the Howard family put a stipulation in his will that in order to benefit, the beneficiary had to adopt the surname of Howard and the Howard coat of arms.

Adopting a coat of arms is a lengthy process. It requires an application to the College of Arms, which in turn makes an application to the Home Office. The Home Office then must petition the Queen. The requirement in the will was for this to be done within a year of the death. Although the process was begun in that time, it was not completed. Nor did the beneficiary change his name until the process was complete.

Mr Howard’s grandson sought to overturn his father’s right to the estate on the basis that the transfer had not taken place within a year. His father’s defence, which has been successful to date, was that although the process had not been completed within a year, it had been commenced in a reasonable time and expedited to the extent reasonably possible.

The Court of Appeal ruled that ‘there is no obligation to take up the name if an application for a Royal Licence is made but not granted within the year, and accordingly there is no “refusal” or “neglect” to take up the Howard name for the purposes of the forfeiture provision’.

However, the grandson has now announced his decision to take the case to the Supreme Court.

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