I have come across several wills that use wording along the lines of:
“to X provided that X is living at my death and survives me by a period of 28 days but if X shall predecease me then to Y”
My reading of this is that if X dies within the 28 day survivorship period, the gift fails as neither X nor Y qualify.
Any thoughts please?
Molesworths Bright Clegg
Yes I agree the gift fails. The drafter should have said “…but if he does not then to Y”. The number of words is hardly more, but this way makes sense and the way this drafter made them does not.
I agree with Ben’s interpretation.
Regrettably, it is not that unusual to see the inclusion of a survivorship provision which is not reflected in by the words of any gift over.
If, instead of “but if X shall predecease me then to Y” the draftsman had included “but if the gift to X fails for any reason then to Y” the issue would not have arisen.
I suggest the original will instructions should be obtained in all such cases, so that the testator’s intention can be identified. It is more likely the intention was for Y to benefit if X survived the testator, but failed to attain vested interest, than for an intestacy to arise.
An application for rectification may be the way forward if the draftsman has misunderstood their instructions.
It’s a longshot given you will have read them but it’s worth checking whether there are any other provisions elsewhere in the Will that state that all legatees failing to survive the testator by 28 days shall be treated as predeceasing them. There are a number of precedents that double up.
Osborne Clarke LLP