Tips on Avoiding Drafting Pitfalls
| Author | Lesley King/Peter Gausden |
| Pages | 247-259 |
Any number of mistakes can be made in a will but by and large they can be grouped under three headings:
(a) failing to make provision for an event;
(b) internal inconsistencies;
(c) ignorance of a legal rule.
22.1 Failing to make provision for an event
Sometimes the failure is the result of not foreseeing that a particular event may occur; sometimes it is simply a careless error in the drafting.
22.1.1 Deaths occurring in ‘wrong’ order
People often assume that deaths will always occur in the ‘right’ order so that the older dies before the younger but this need not always be the case. Testators should always test out the will by considering what will happen if deaths occur in an unexpected order.
In the interests of certainty it is usually desirable to include a survivorship clause requiring a beneficiary to survive the testator by a certain period with a gift over to someone else if they do not.
EXAMPLE
Morag is a widow. She has three children, Ann, Ben and Colin.
Ann is married to Don whom Morag dislikes; they have one daughter, Zena.
Ben is married to Eva and has no children.
Colin and Morag are estranged and she has not seen him for 20 years.
Morag is seriously ill in hospital. Ann and Ben are involved in a car accident on the way to the hospital. Ben dies immediately. Morag dies later the same day. Ann dies on the following day.
248 Wills: A Practical Guide
Morag’s will leaves everything to Ann and Ben in equal shares; there is no survivorship or substitutional gift.
Ann and Ben have wills which leave everything to their spouses.
Ann survives Morag so her half of the residue forms part of her estate. It will, therefore, pass under the terms of her will or under the intestacy rules if she has no will. Either way, it is likely to pass to her husband, Don.
Ben predeceased Morag and so his half share lapses. The residue was left in equal shares, which means that Ann and Ben were each entitled to one half. Ben’s share does not pass to Ann; it is undisposed of property and will pass to those entitled on Morag’s intestacy. This will be those of her children who survive her and reach the age of 18 or marry earlier. The lapsed half share of residue will, therefore, be divided between Ann’s estate and Colin.
If Morag had been asked what she would want to happen in this scenario, she would probably have said that she would want her estate to be held on trust for Zena.
This could have been achieved by drafting the will as follows:
(a) any beneficiary who fails to survive by 28 days is deemed to have predeceased;
(b) if Ann or Ben predecease, their share is to be held on trust for their children or remoter issue, if any;
(c) if Ann or Ben die without issue, their share is to be added to the share of the other;
(d) if all the above gifts fail, the property is to go to a default beneficiary.
Remember, though, that survivorship clauses can only affect the disposition of property passing by will. They will not affect the disposition of property passing by survivorship (see para 22.1.3). Also, there can be circumstances (usually as between spouses and civil partners) where a survivorship clause is unhelpful (see para 22.1.2).
22.1.2 Survivorship clause resulting in double payment of pecuniary legacies
As explained at para 15.5.5, a survivorship clause can sometimes produce adverse inheritance tax consequences for spouses or cohabitees who are leaving everything to the other with the same substitutional provisions if the other predeceases. It is common to exclude the effect of a general survivorship on gifts to the surviving spouse or civil partner.
However, there is another possible problem in relation to survivorship clauses.
Two testators (usually spouses or civil partners but sometimes cohabitees, siblings or close friends) may agree that the estate of the first to die is to pass to the survivor and that on the survivor’s death a number of pecuniary legacies – to relatives, friends, charities, etc – should be paid.
Each will has to include the legacies as no one knows what the order of deaths should be but, unless the will is carefully drafted, the legacies may be paid both on the first death and on the second death.
Jump v Lister [2016] EWHC 2160 (Ch) is an example of the problem. An elderly couple died in circumstances where the order of deaths was uncertain. The wife was the elder. The husband’s will left everything to his wife but if she predeceased him, he left a number of substantial pecuniary legacies and a gift of residue to two nieces. The wife’s will left everything to her husband but if he predeceased her, she left the same pecuniary legacies and made the same residuary gift. Unfortunately, both wills included a general survivorship clause which provided that any beneficiary who failed to survive by 28 days should be deemed to have predeceased.
The inclusion of the general survivorship clause was unfortunate.
The husband’s gift to the wife obviously failed because she was deemed to have died first under section 184 of the LPA 1925 so the pecuniary legacies were payable.
The wife’s gift to the husband failed because the general survivorship clause meant that he was to be treated as having predeceased, so the pecuniary legacies were payable a second time.
The result was that the amount taken by the nieces was significantly reduced as a result of what they claimed was the will drafter’s negligence.
Where testators want to make pecuniary legacies payable only on the survivor’s death, there are two ways of drafting the will:
(a) Include a general survivorship clause but state that the legacies are to be halved if both deaths occur within the survivorship period.
(b) Provide that the general survivorship period is not to apply to the gift to the survivor.
22.1.3 Joint property
A survivorship clause in a will affects only property passing under the will and not assets held jointly. Such assets pass to the survivor irrespective of the terms of the will. For many married couples and civil partners their
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