Joint gift of residue in a Will

I would be grateful for any input in interpreting the below wording in a Will. It concerns a share of the residue, gifted to two named individuals:

“One share to ‘Jim’ and ‘Jenny’ absolutely”

‘Jim’ predeceased the testator, whereas ‘Jenny’ survived them. My thoughts are that Jim’s share falls back into the residue to be captured by an accrual clause, with ‘Jenny’ receiving only half of one share instead (rather than ‘Jenny’ receiving the whole of the share), but I am unable to find case law or a text reference supporting/refuting this. Would anyone be able to point me to relevant source please?

By default, a legacy to two or more people is usually considered joint so Jenny would take all (Halsbury’s v102 para 395 contains a long list of cases)

I understood that in the absence of any further specific wording in the will (eg the residuary gift is given on joint tenancy) the failure of the residuary gift to Jim then passes on intestacy and does not automatically accrue to Jenny.

Malcolm Finney

Thank you very much indeed to both for your replies. I am currently looking through case law as suggested.

The Will provides only as set out above; interestingly, there is another joint gift of a further share of the residue, this time “such of…as shall survive me and equally between them if more that one”.

Morley v Bird (1798) 3 Ves 629
Peat v Chapman (1750) 1 Ves Sen 542
Re Radcliffe, Young v Beadle (1903) 51 WR 409

May help.

Malcolm Finney

I appreciate that I am coming rather late to this issue, but have difficulty in disagreeing with Andrew as I have always understood that under the law of England & Wales, the default position for a joint gift is that it will accrue to the survivor unless there are words of severance, e.g the share in question was given to Jim and Jenny “equally” or “in equal shares”. Under Scottish Law (or is it Scots Law?), I understand the reverse is true with a tenancy in common being the default position.

The cases Malcolm has referred to are interesting, in that I can only locate reference to Morley v. Bird, which appears to apply only where a joint loan exists, with the default position of the lenders being a tenancy in common. However, it is cited in Tottel’s “A Practitioner’s Guide to Joint Property” in support of: “Where a gift is to two or more beneficiaries as joint tenants there can be no lapse of the gift unless all of the beneficiaries predecease the testator. If one beneficiary predeceases the testator, the shares of the others are correspondingly increased”

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals

A gift to joint tenants, say X and Y, results in Y acquiring the whole gift should X die before the testator and Y survives the testator.

However, if the wording of the will is such that the gift to X and Y is as tenants in common then on X’s death his share lapses.

I think I misread Heather’s post as if the gift was a share of residue to each of Jim and Jenny (tenants in common). On reflection, the gift seems to be a single gift of a share in residue (eg 40%, 70% or whatever) with no words of severance.


Malcolm Finney

Thank you very much indeed to all for your helpful comments. The gift is stated as “One share to X and Y absolutely” with no further wording of severance or otherwise. I am grateful for everyone’s input and suggestion of sources.