I have an individual who was found dead after lying undiscovered for a considerable period of time. It is likely, given the condition of the body, that the death took place at least a month prior to the discovery.
No one can say for certain what the precise date of death was, and the coroner and registrar have indicated that the death certificate will simply record the date of discovery.
The difficulty is that one of the two residuary beneficiaries died only 10 days after the discovery of the body, and the will contains a 28 day survivorship clause.
My view is that satisfaction of the condition precedent represented by the survivorship clause is a question of fact for the executors to establish to their own satisfaction (and on the balance of probabilities). They, naturally, would like some certainty as to their position. I thought, perhaps, that a Benjamin order could be sought declaring that the death took place outside a certain range of dates (i.e. at least 18 days prior to discovery) and authorising the executors to distribute the estate on that basis, but it seems a time consuming and costly process to have the court declare the obvious.
Perhaps the deceased’s last phone or computer usage can be ascertained to help establish an approximate date of death for the purposes of extracting the Grant? We have previously presented evidence in similar circumstances which was then accepted by the Probate Registry.
Depending upon the amount involved, perhaps the PRs of the deceased “beneficiary” and the person(s) who would be entitled had the “beneficiary” failed to survive the testator might agree to enter into a deed of variation effectively dividing the benefit between them.
If no agreement is likely (or if the amount involved is substantial), then the cost of further enquiries to try and establish the likely date of death of the testator cannot be avoided. Even if applying for a Benjamin Order, the court may well require evidence that all possible steps have been taken to establish the true date of death (as it is only then that the court’s discretion is triggered).
If the parties cannot agree, I suggest Chancery counsel be consulted as soon as possible so as to guide you through the steps needed to ensure that all appropriate evidence is available to the court when the application for directions is made.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
Welcome to the forum. I have no particular knowledge of this scenario but for the sake of discussion will state the obvious.
The executors might seek the cooperation / agreement of the beneficiaries in either scenario as desired / agreed (i.e. with or without the 28 day clause as written).
In respect of the provision for the residuary beneficiary who has died, a deed of variation may be executed by those beneficiaries affected to accept a position such that either a) the 28 day clause was omitted from the will (meaning the estate of the deceased beneficiary receives the entitlement) or b) the clause is replaced with a survivorship clause of fewer than 10 days.
If the estate is significant and the parties involved are uncooperative then you may have no alternative but to seek an order.