When Mr. and Mrs. Winston died aged 85 and 88 at their home it wasn’t clear who died first. In some jurisdictions where this occurs the elder is deemed to have died first.

Mr. Winston’s Will left everything to his wife if she survived him but if she did not he left his estate of £214,500 to individuals and charities, and residue to nieces, Sandra Jump and Suzanne Jones.

As Mrs. Winston was 3 years older, by virtue of legislation, she had predeceased Mr. Winston. Mrs. Winston’s will was a mirror of her Husbands however 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’.

As Mr. Winston had not survived by 28 days. A literal reading of Mrs. Winston’s Will meant that the £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 £214,500.

Suzanne Jones and Sandra Jump, as executors of the Wills, commenced proceedings asking the Court to decide if the literal approach should prevail.  The solicitor who drafted the Will argued in favour of an interpretation of the Will that gave effect to Mr. and Mrs. Winston’s intention that the legacies only be paid on the death of one and not both of them.

The solicitor argued that the survivorship clause only took effect if the primary gift to Mr. Winston had failed (ie the survivorship clause applied to the alternative legacies).  Everyone involved accepted that was what the Winston’s had intended.

The solicitor gave evidence that he had explained the likely tax consequences to Mr. and Mrs. Winston, including that the legacies to charity would only be paid once.

Mr. Winston had asked him to confirm that the legacies would only be paid on the second death and that he had confirmed that this was the case.

Despite this evidence, the court concluded that the survivorship clause directed ‘in clear and unambiguous language’ how Mrs. Winston’s estate was to be divided if any person named in the Will, including her husband, died within 28 days of her own death.

This wording was too clear to allow the alternative suggested interpretation (even though it was the interpretation all the parties including the Judge accepted was the original intention).

As a result of the claim, Mr and Mrs Winston’s solicitors were ordered to pay the costs incurred by Sandra Jump and Suzanne Jones; who will now seek compensation from those solicitors for the extra £214,500 paid to the specific individuals and charities named in the Wills.

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