We recently wrote a blog about the importance of survivorship clauses within wills. The satisfactory drafting of both Survivorship Clauses and Mirror Wills has been thrown into the public eye once again by the reporting of the recent case, Jones v Lister  EWHC 2160. This shows the unexpected issues which may arise from the construction of such clauses. Though unfortunate for the parties, Lawyers have received some much-needed clarification on the interpretation of often unclear instruments.
These are clauses which state that a beneficiary under a will must out-live the testator by a prescribed amount of time for the gift to be valid. Failing this, the gift will be distributed pursuant to the terms of the will, and often left to the residue of their estate.
Without such clauses, testators will often be left in the unfortunate circumstances where assets/money pass to one beneficiary and following their death to another, in an extremely short period of time. This is often the case in situations where both parties have been involved in the same accident and one lives for a slightly longer period of time than the other. Invariably, this will not be the testator’s intentions. The assets may, therefore, end up somewhere the testator may not have intended nor wanted.
A further complexity arises where spouses make Mirror Wills. This includes such clauses in relation to each other and die at or around the same time, often the wills not catering for such eventuality. This was the case in Jones v Lister. The assets/cash were deemed to pass to the same beneficiaries twice.
Background to the case
In 2011, John Winson and Mable Winson were both found dead at their home. It was not possible to determine which spouse had predeceased the other. So, it was therefore construed (in accordance with s.184 Law of Property Act 1925), that Mrs Winson had predeceased Mr Winson on the basis that she was the elder of the two. The net value of Mrs Winson’s estate was £797,024.00 and Mr Winson’s was £967,901.00.
The parties’ wills
Mirror Wills were made by both parties which left their residuary estates to one another. In the event that this failed, they stipulated a number of other beneficiaries who should receive certain legacies, and that their two nieces should receive their residual estates. The nieces were, in fact, the claimants in this case. Both wills contained survivorship clauses stating that ‘any person who dies within 28 days of my death [is treated to have] predeceased me’.
The issue arose as to whether the Survivorship Clause in Mrs Winson’s will applied to the gift to her husband as he was treated to have predeceased her. If this did not apply, the gift would pass once to Mr Winson, and then again in accordance with his will. If the clause did apply, then the gift to Mr Winson would fail on the basis that he did not survive her by 28 days and therefore the gifts contained within the wills would have to be paid out twice.
The claimants, in this case, were the executors under both wills, Mr and Mrs Winson’s nieces. They sought an order from the court as to the validity of such clause on the basis that if it was indeed effective, they could be liable as executors to pay the specific legatees in respect of both wills.
Surprisingly, they interpreted the survivorship clause to be effective, meaning that the legacies would be paid twice. They claimed that this was due to the defective drafting by the solicitor of the wills. The defendants were the solicitor who drafted such wills, and also the firm who had employed the solicitor.
As in Sammut v Manzi  UKPC 58, the “starting point when construing any will is to attempt to deduce the intention of the testator by giving the words of the will the meaning that they naturally bear, having regard to the contents of the will as a whole”. The court also considered the more recent case of Marley v Rawlings  UKSC 2 where it was said that “when interpreting a contract, the court is concerned to find the intention of the party…and it does this by identifying the meaning of the relevant words”.
HHJ Hodge QC found in favour of the claimants. He agreed that the wording of Mrs Winson’s will was clear. There was nothing to exclude Mr Winson from the effects of this clause. He further made the comment that should the application have been for a variation to Mrs Winson’s will, she may have considered inserting words, ‘other than my husband’ to the survivorship clause. As at the conclusion of the proceedings, the claimants had threatened professional negligence proceedings against the defendant law firm. However, at the time of writing, this has not been reported.
This case shows the sometimes unfortunate and unintended consequences which can arise from the drafting of Mirror Wills. It is therefore vital that upon embarking on writing a will, that you seek professional advice from a law firm experienced in this area.