A testatrix died on 10/01/2021 and her son died on 09/03/2021. The survivorship clause states that the son would benefit “provided he shall survive me by a period of 2 months.”
How should the survivorship clause be construed?
a) Did the son survive his mother as he was alive on the last day (09/03/2021) of the 2 month survivorship period?
b) Or did he fail to survive his mother as he did not survive the full period of 2 months which ended on 09/03/2021?
On the basis that a person is alive on the day they die, in the present case day 1 of the survivorship period will have been 10 January 2021 and the last day, therefore, 9 March 2021.
Accordingly, if the son died on or before 9 March 2021 he failed to survive “by a period of 2 months” and the will should be read as though he failed to survive the testatrix.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
I attempted to research the issue of what constitutes a “month” for SRT purposes some years ago but didn’t completely resolve it.
IA1978 defines “month” as a “calendar month”.
An extract from Dodds v Walker [1981] UKHL albeit an issue of tenancy notice (but the principle seems the same here) states:
My Lords, reference to a “month” in a statute is to be understood as a calendar month. The Interpretation Act says so. It is also clear under a rule that has been consistently applied by the courts since Lester v. Garland(1808) 15
Ves. Jun. 248, that in calculating the period that has elapsed after the occurrence of the specified event such as the giving of a notice, the day on which the event occurs is excluded from the reckoning. It is equally well-established, and is not disputed by counsel for the tenant, that when the relevant period is a month or specified number of months after the giving of a notice, the general rule is that the period ends upon the corresponding date in the appropriate subsequent month, i.e. the day of that month that bears the same number as the day of the earlier month on which the notice was given".
Presumably, on this basis, the son would have needed to have survived at least to 10 March 2021. Dying on the 9 March would thus mean the son did not survive for the required two months.
As an extension of this discussion, what if he had died on the 10th of March? Would he have had to survive the whole of the 10th of March to inherit? Or would it have been enough that he was living on the 10th of March even if he did not survive the whole day? It would be good to have your thoughts on that?
It is sufficient that the beneficiary is alive on 10 March, even if only for a short time.
Beware, though, if the beneficiary died in a different time zone to that of the deceased, as the survivorship period is relative to the deceased – see my article “Survival: Every second counts” in the STEP Journal+ Survival: every second counts | STEP
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
As Paul states, survival on 10 March means living at anytime from the commencement of that day ie midnight. It is not necessary to survive for the whole day of the 10 March.
Unfortunately, I cannot access Paul’s article but following research I carried out (as mentioned above) sometime ago references to time in UK legislation refer to Greenwich mean time (IA 1978 s9). Thus, the reference to surviving for a period of two months, is a reference to and measured under UK time.
For example, if the deceased died, say, on 1 January 2022 survival for two months would mean surviving to 1 March 2022 (ie from midnight thereon). If the survivor died in Hong Kong on 1 March 2022 local time/date (and assuming for present purposes Sydney, Australia is one day ahead of the UK) then the survivor would have died on 28 February UK time, and would not therefore have survived for two months.
The question of survival is fact based and, yes, referencing the deaths to GMT will identify both if the beneficiary survived the deceased (if mere survivorship is required) or if the beneficiary survived the stipulated time. As Malcolm suggests, the beneficiary in the instant case could, for example, have died in Sydney, Australia at 8 am on 10 March, but failed to meet the survivorship requirement as Sydney is over 8 hours ahead of the UK, so that they will have died before mid-night on 9/10 March applying GMT.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals