Analysis
John Raymond Winson and Mable Winson (Mr & Mrs Winson) made ‘mirror image’ wills with the first defendant, a solicitor employed by the second defendant, on 17 August 2010 by which, in simple terms (and subject to two minor specific legacies by Mrs Winson), they left their estate to each other but, if that gift failed, left pecuniary legacies to the same named individuals and charities with the net residue passing to the claimants in equal shares. In each will there was a survivorship clause in the following terms:
‘My estate is to be divided as if any person who dies within 28 days of my death had predeceased me.’
In the event which occurred, Mr & Mrs Winson were both found dead on 6 October 2011 at their home in Penrith in circumstances in which it was not possible to determine who died first. As a result of the commorientes rule, Mr Winson, who was younger than his wife, was deemed to have survived her and the question for the court to determine was whether the pecuniary legacies would have to be paid out once or twice. They totalled £214,500. Mr & Mrs Winson only intended the pecuniary legacies to be paid once, upon the second death. When the first defendant attended them to assist with the execution of the wills, he confirmed that this was the case.
Held
On the true construction of the wills, the wording of the survivorship clause was neither meaningless nor ambiguous. The question was not one as to the meaning of the survivorship clause but rather as to its application. This was an unintended effect in the particular circumstances of Mr & Mrs Winson having died more or less simultaneously. Is it what has been termed an ‘omnibus’ survivorship clause, which applied throughout generally, or is its application confined to the secondary gift, which took effect only if the primary gift to the spouse fails. The key words of the survivorship clause were ‘my estate’ and ‘any person’. The term ‘my estate’ bore the same meaning throughout and the words ‘any person’ referred to anyone named in the will. There was nothing in the will to exclude the relevant spouse from the ambit of the description ‘any person’ or to restrict the application of the survivorship clause to the residuary estate in the event of a failure of the primary gift. Consequently, the fact that Mr & Mrs Winson died within 28 days of each other meant that the primary gift failed in each case, and it followed that the secondary gifts took effect in each case. As to the question whether a mistake was made in not excluding the relevant spouse from the survivorship clause, it was insufficiently clear without resorting to evidence from which an inference could be drawn as to the subjective intentions of the maker of the will. Such evidence would only be admissible in a claim for rectification and not on a claim which was limited to a consideration of the true interpretation of the wills. As regards the costs, this was not a case where they were incurred for the benefit of the estate and therefore payable out of the estate. In this case, the construction issue had been defended, not for the benefit of the estate, but for the benefit of the solicitors. They had lost and therefore costs should follow the event.
JUDGMENT HHJ HODGE QC: [1] This is my extemporary judgment in the case of Mrs Sandra Jump and Mrs Suzanne Jones (as claimants) and Mr Harry Dow Lister and Forresters Solicitors Limited (as defendants), claim number C30MA158. The claim concerns the estates of the late Mr John Raymond Winson and his late wife Mrs Mable …Continue reading "Jump & anr v Lister & anr [2016] EWHC 2160 (Ch)"