A gift of “the property in which I reside at my death” in a Will. The deceased died in a nursing home, but it is clear which property is meant from the context (although no address is given), and it had not been sold. Has anyone tried to argue the gift is still valid, as the intention is clear, even if on a strict reading it fails?
These clauses give rise to so many problems-why do people continue using them, except in exceptional circumstances with all possible contingencies covered?
As Simon suggests, these clauses can be a disaster in waiting.
Even before the Supreme Court ruling in Marley v. Rawlings, Chancery counsel’s advice generally was to look to the instructions and the testator’s intention, as the provision is clearly ambiguous. This usually resulted in the former home, if still owned, passing under the terms of the devise.
In one particular case, the will also included a legacy to the proprietor and owner of the residential home. In that case, counsel appended an interesting dissertation on the Equitable Doctrine of Election to the opinion. That particular case was resolved by deed of variation, to remove the possibility that the testator really was trying to make a gift of the residential home!
In Simon’s case, I suggest obtain the will instructions, etc. and refer it to counsel so that the executor is protected, especially if any dispute arises as to whether the gift fails.
“The intention is clear … [but] … on a strict reading it fails”. Is this not a case where an application for rectification is the appropriate solution?