In a case of interest to those who draft and administer Wills, the England and Wales High Court (‘EWHC’) had to decide whether to accept the natural and ordinary interpretation of the words used in a Will even though everyone concerned agreed it did not reflect the intentions of the person who left the Will (‘the Testator’).  The decision is not binding on the Cayman Islands (‘Cayman’) Courts, but would be considered persuasive authority.

Case: Jump and another v Lister and another [2016] EWHC 2160 (Ch)

What did the Wills say?

A husband (‘H’) and wife (‘W’) each made a Will leaving everything to the other, provided that they survived for 28 days. If not then each Will provided that £214,000 would be divided among 13 named individuals and charities (‘the13 Beneficiaries’), and what remained would pass to W’s nieces, who were also the Executrices of both Wills.

What happened?

Both H and W were found dead in circumstances where neither survived the other by 28 days and where it was not clear which of them died first. By statute, the presumption in England is that the younger died last, in this case H. (The same presumption applies in Cayman under s.36 (1) of the Succession Law (2006 Revision) for deaths which occur after 23 March 2006.)  W was therefore treated as having died first, which would have meant her estate passed to H, and then the combined assets were disposed of under the terms of H’s Will. However each Will had a clause (‘the Survivorship Clause’) which provided that:

'My estate is to be divided as if any person who dies within 28 days of my death had predeceased me'.

Does that make a difference?

As H had not survived W by 28 days then H did not receive anything under her Will.  However, the remainder of the gifts in the Wills stood as they were written. AAll parties agreed that H and W had intended that the 13 Beneficiaries would benefit once, i.e. receive 1/13 of £214,000 from the estate of whoever had died last  Instead, because of the way the Wills were written and because W was deemed to die first and H did not survive 28 days, each of the 13 Beneficiaries now stood to benefit twice, i.e. receive 1/13 of £214,000 under each Will. Rather than dividing a sum of £214,000 they would share a total of £428.000, which would reduce the amount left over to go W’s nieces.

Why did they go to Court?

The Executrices needed to be sure how to administer the Wills. They argued in favour of the Wills’ being read as they were written, which would benefit the charities and individuals. The Solicitors who drew up the Will argued that the money should go as H and W intended and the charities and individuals would receive only one payment, which would benefit the Executrices.

What did the Court say?

The EWHC adopted the usual starting point in deciding how to interpret a Will, and looked at the ordinary and natural meaning of the words used. The Survivorship Clause was clear that before a beneficiary could benefit under the Will they had to survive the deceased by 28 days. That was how they were drafted, and that was how they had to be interpreted. Accordingly, H did not inherit under W’s will.  The bequest to him failed and the 13 Beneficiaries got £214,000 from W;s estate.  Then looking at H’s will, as W was deemed to pre-decease H his gift to W failed and the 13 Beneficiaries received a further £214,000 from H. 

Was there another way?

Possibly. The Judge considered that the Will could have been rectified on the grounds there had been a mistake, a ‘clerical error’ (see our earlier piece on Marley v Rawlings). This was not an argument put before the Judge to decide as it would have meant the solicitors who drafted the Will admitting a mistake had been made. This could have been used in a potential professional negligence claim by the nieces against the solicitor who drafted the Wills.

Solomon Harris

If you are looking to prepare a Will, would like advice on a survivorship clause or need advice on how to administer an estate, then contact us on to see how we can help.

The information contained in this article is necessarily brief and general in nature and does not constitute legal advice. Appropriate legal or other professional advice should be sought for any specific matter.


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