Words Mean What They Say - When They Clearly Should Not.

 
FREE EXCERPT

In recent years judges have shown much greater willingness to ensure that mistakes in Wills are corrected. The result has been to uphold testators' intentions in the face of ambiguity or even plain error.

But every now and then the wheels come off and the literal approach favoured in the olden days triumphs. A recent example is the decision in Jump and Jones v Lister and Forresters Solicitors Limited.

Background

Mr and Mrs Winston had died at their home in Penrith. It isn't clear who died first. In those circumstances the law decrees that the elder is deemed to have died first (the 'commorientes rule'). Mrs Winston was 88 and Mr Winston 85.

Mr Winston's Will left everything to his wife if she survived him but if she did not he left legacies of [pounds sterling]214,500 to individuals and charities, and residue to nieces, Sandra Jump and Suzanne Jones. Mrs Winston, by virtue of the 'commorientes rule', had predeceased. Therefore, the alternative provisions took effect.

Mrs Winston's Will mirrored that of her husband thus, having predeceased, her estate was payable to her husband. However, under 'Technical Clauses' her Will contained the following: 'My estate is to be divided as if any person who dies within 28 days of my death had predeceased me'.

Mr Winston had not survived by 28 days. Mrs Winston's Will included the same alternative provision as Mr Winston, namely [pounds sterling]214,500 legacies to individuals and charities, and residue to Sandra Jump and Suzanne Jones.

A literal reading of her Will meant that the [pounds sterling]214,500 legacies were paid again (even though they were also payable under Mr Winston's Will).

Suzanne Jones and Sandra Jump thus stood to lose out by [pounds sterling]214,500.

Recent approach

In Marley v Rawlings the Supreme Court addressed a situation where husband and wife had each executed the other's Will. The mistake was not spotted on the wife's death but some years later when the husband passed away. The question was whether the Will the husband had executed (that of his wife) could be construed or rectified so that it could be read as his. The Supreme Court unanimously decided that it could.

Other examples include Esson v Esson where the words 'should I predecease him' as a condition of the gift of a bank account to the testatrix's grandchildren in a codicil were ignored.

In Slattery v Jagger the Court chose to add the words 'to my wife' into a gift of property.

In Royal Society v Robinson the Court construed a reference...

To continue reading

FREE SIGN UP