No Survivorship Clause? No Inheritance?

As wills are generally written several years before someone’s death and it can often be the case that by the time of a testator’s death a beneficiary has died. It is generally considered good practice to ensure that a will provides for the share of any beneficiary who has pre-deceased the testator to pass to someone else in the alternative or perhaps to form part of the residuary estate to be shared between all beneficiaries on an equal basis, so-called survivorship clauses but what happens if there is no such clause?

Statutory provisions

The starting point for consideration of this question is statute, namely the Wills Act 1837 (“the Act”). Section 33 of the Act provides:

“(1)    Where:

(a)    A will contains a devise or bequeath to a child or remoter descendant of the testator; and
(b)    The intended beneficiary dies before the testator, leaving issue; and
(c)    Issue of the intended beneficiary are living at the testator’s death

then, unless a contrary intention appears by the will, the devise or bequest shall take effect as a devise or bequest to the issue living at the testator’s death.

(2)    Where:

(a)    A will contains a devise or bequest to a class of person consisting of child or remoter descendant of the testator; and
(b)    A member of the class dies before the testator, leaving issue; and
(c)    Issue of the intended beneficiary are living at the testator’s death

then, unless a contrary intention appears by the will, the devise or bequest shall take effect as if the class included the issue of its deceased member living at the testator’s death.”

There are two important consequences of the above provisions. Firstly, contrary intention has to be in the will itself. As a result, unless Section 21 of the Administration of Justice Act 1982 is engaged extrinsic evidence of the testator’s intention will not be admissible. Secondly, absent that contrary intention Section 33 must apply.

Section 21 of the Administration of Justice Act 1982 provides:

“(1)    This section applies to a will:

(a)    Insofar as any part of it is meaningless;
(b)    Insofar as the language used in any part of it is ambiguous on the face of it;
(c)    Insofar as evidence, other than evidence of the testator’s intention, shows that the language used in any part of it is ambiguous in the light of surrounding circumstances.

(2)    Insofar as this section applies to a will extrinsic evidence, including evidence of the testator’s intention, may be admitted to assist in its interpretation.”

Subsection (1) sets out the road map for the applicability of this section.  Unless one or other of these provisions is satisfied, evidence of the testator’s intention is not admissible. For example, if a testator left a gift to “his children”, evidence that he often referred to both his own blood children and his step-children without distinction would be admissible to determine if any of the conditions in subsection (1) were satisfied but evidence of instructions given to the will draftsman or what he told others about his testamentary intentions would not be.

Practical consideration

In the recent case of Re estate of Ellen Beatrice Brackstone Ashton v Brackstone (as executor and beneficiary of the estate of Ellen Beatrice Brackstone, deceased) [2020] the court had to consider whether Mrs Brackstone’s grand-daughter, Holly was entitled to inherit her mother’s share of her grandmother’s estate, Holly’s mother having pre-deceased her own mother.

Mrs Brackstone died on 7 April 2018. Just three months earlier her daughter, Sandra had died on 5 January 2018. Mrs Brackstone’s last will made on 22 November 2017 left her estate in equal shares to her children, Sandra and David.

The will had been prepared by solicitors who had also overseen its execution.  The will left the estate to her children in the following terms:

“I GIVE DEVISE AND BEQUEATH all of my real and personal property whatsoever and wherever situate to my trustees upon trust … for such of my children as shall survive me in equal shares namely SANDRA MAXINE EVEREST of … and DAVID OWEN BRACKSTONE of …”.

The will, which did not include any survivorship clause, appointed Sandra and David as executors of their mother’s estate.  David obtained a grant of probate on 27 June 2018.

Court proceedings

Holly brought a claim seeking declarations and consequential relief to the effect that she be entitled by virtue of Section 33 of the Act to take a one half share of her grandmother’s estate in substitution for her mother. David opposed the claim contending that he believed strongly that he knew what his mother wanted and that she did not want any of her grandchildren to benefit under her will. He also wished the court to consider evidence of conversations he had had with his mother and of her instructions to her solicitors.

The court held, however, that such evidence was inadmissible, direct evidence of intention not being admissible to aid construction of the will. The court also did not consider that Section 21 applied as no part of Mrs Brackstone’s will was meaningless, ambiguous or ambiguous in light of surrounding circumstances.

In the circumstances, the court considered the matter was simply a question of construction of the will and whether the words “for such of my children as shall survive me in equal shares absolutely …” showed an intention to exclude Section 33 of the Act.

Judgment

In Deputy Master Lloyd’s view the words of Mrs Brackstone’s will were not sufficient to exclude Section 33. He reached that conclusion as a matter of construction of the will. Accordingly, he found that Holly was entitled to receive one half of her grandmother’s estate and made a declaration to that effect.

Conclusion

Whilst the case appears to be correctly decided on the facts it would not have even been possible for Holly to bring such a claim, let alone necessary, if the will had included a survivorship clause. If, as David alleged, his mother had not wished any of her grandchildren to inherit her estate then she could easily have added a clause providing that if, in the event of either of her children pre-deceasing her that the entirety of her estate should pass to the remaining surviving child absolutely and even considered leaving her estate to another friend or relative or perhaps a charity if both children had pre-deceased her.  The case therefore serves as a useful reminder of the importance of survivorship clauses.

Ally Tow is a member of the firm’s probate disputes team and can assist with any potential Section 33 Act claims. To avoid having to deal with disputed matters after a testator’s death, we recommend all wills are reviewed to ensure that survivorship clauses are included. If this situation arises or any other issues relating to the contesting of a will, please contact Ally Tow on [email protected]