‘Toxic’ survivorship clauses: does your Will contain one?


Author: Helena Luckhurst


This article is taken from Helena Luckhurst’s blog The Wealth Lawyer UK

Do you have a survivorship clause in your Will? Chances are you do, if you leave assets to someone outright in your Will.  The mischief that these clauses are designed to avoid is this.  If A gives a gift to B in his Will and B dies the day after A, B’s estate will get the gift and it will be B’s Will that decides where A’s gift ends up.  However, in these circumstances, A may have wanted someone else to get the gift instead (A may not like B’s choice of heirs!).  Survivorship clauses are meant to solve this problem.  They also prevent the delay associated with the same money being administered through two separate estates and can reduce the total Inheritance Tax bill on both estates.

Survivorship clauses introduce a condition of survivorship to an otherwise outright gift in a Will – for example: ‘I give £100,000 to my nephew if he survives my death by 28 days’. Sometimes a catch-all survivorship clause is included instead; for example: ‘My estate is to be divided as if any person who dies within 28 days of my death had predeceased me’.  However, this exact catch-all phrase unfortunately caught out the estates of the late Mr and Mrs Winson, as recently decided in the case of Jump v Lister [2016] EWHC 2160 (Ch).

Mr and Mrs Winson made similar Wills leaving everything to each other but if that gift failed, each Will contained a near identical list of cash gifts to be made, totalling £214,500 in each Will, and the rest to two nieces. Their Wills contained the above survivorship catch-all clause.

Unfortunately, Mr and Mrs Winson died of natural causes at home and, as it was impossible to say which survived the other, English law (specifically the commorientes rule in section 184 Law of Property Act 1925, which is designed to help determine ownership of assets where survivorship is uncertain) stepped in to deem the younger (Mr Winson) to have died last. Therefore, in Mrs Winson’s case, her husband was deemed to survive her because he was younger but not by 28 days and so the gift to him failed. In Mr Winson’s case, his wife as the elder was deemed to have already predeceased him and so the gift to her automatically failed.  The result was that the recipients of the cash gifts received the same gift twice, from each Will.  As there was no ambiguity in the wording of the survivorship clause, the court felt unable to reach any other conclusion.  Whilst Mr Winson had asked for confirmation from the solicitor draftsman that the legacies would not be paid twice, Mrs Winson had not.  Therefore there was insufficient evidence of her intentions on the matter to found a claim for rectification of her Will, to prevent the cash gifts being made twice.

Not all survivorship clauses are ‘toxic’ but in this case, a combination of unusual circumstances and a lack of appreciation about how the commorientes rule would operate on the survivorship clause in the Will resulted in unintended consequences. The survivorship clause should have been disapplied in respect of the gift to the spouse in the Winsons’ Wills.  The case shows that it’s wise to get the will-drafter to focus on the issue by confirming in writing how the survivorship clause could operate.  The case is also a clear reminder that Will drafting is a tricky business.  Mr and Mrs Winson could not have spotted the issue even by reading their Wills carefully.  No one who was unaware of the commorientes rule would have either.

Helena Luckhurst, Partner, Fladgate LLP (hluckhurst@fladgate.com)

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