Survivorship in light of Jump v Lister [2016]

A recent case in the High Court has highlighted some potentially serious problems with the construction of many Mirror Wills. Mirror Wills are wills made by Husband and Wife, in relatively similar terms, but are fully amendable/revocable (even on the death of the first spouse, unlike Mutual Wills).

The problems arise with the use of ‘Survivorship Clauses’, which allow for an additional element of control in that the testator (the person making the will) can decide where his estate goes when the original gifts fail or the recipient is no longer living. Whilst the decision on whether or not to use such a clause (I.e. for an Inheritance Tax advantage) is one for careful consideration and discussion with your solicitor, it is a frequently seen inclusion in most modern mirror wills.

The wills in question did not deal with what would happen in the event that both Husband and Wife died at the same time. As a result, they were deemed to pass gifts (both cash and chattels) to the beneficiaries twice, which is often the exact opposite of what is intended. Usually, the intentions of those making the wills would be that everything would pass to the survivor and only on the death of the surviving spouse would the gifts be made to the beneficiaries, even though both wills detailed the gifts.

It was held that the clause used was wide enough in scope to apply so that the younger spouses failure to survive by 28 days meant that the gift to him did not take effect. The couple had died in circumstances where it was impossible to tell who had died first, thus the gifts under both wills were deemed effective. There is a general statutory rule (‘Commorientes’) that in those circumstances, the younger of the two is deemed to have survived the elder but the Court found that in these circumstances the survivorship clause had overridden this rule.

In this case, both had left their estate to the survivor and then on to other beneficiaries. As it could not be determined who had died first, neither could be deemed (on the wording of the wills) to have survived the other, therefore the primary gifts under both wills fail and the wills have to be administered in accordance with the substitute provisions in the event that the original gifts fail. As a result, all of the gifts under both wills were valid.

In summary, the problem was with the use of a standard precedent clause by the solicitors preparing the mirror wills. If the correct clause/wording had been used, the gifts would not have taken effect twice. This is why it is so important to instruct solicitors experienced in drafting effective mirror wills and gifts that only take effect on the survivors death.

The Wills and Probate team at McCarthy Bennett Holland Solicitors have the relevant expertise to ensure that this sort of problem does not arise on your death and are readily available to assist you. Please note that you should always explore the Inheritance Tax implications of your will in deciding whether or not any such clause should be used.