I would be interested to hear others’ views on this.
I have been presented with a Will which states “I appoint X and Y as my Executors but in the event that one or both of the aforementioned are unable or unwilling to act then I appoint Z to act instead”.
X has predeceased the deceased.
Are the Executors Y and Z, or just Z?
Martyn Dixon
Harold Bell Infields & Co.
Wonderful!
The strict logic of the sentence leads to Z, but I expect that the testator’s intention was Y and Z. If Y is able and willing to act, it doesn’t make a great deal of sense to replace them for no reason. I think if pressed, the court would be more likely to reach a sensible outcome. After all, Lord Neuberger’s summary of will interpretation in Marley v. Rawlings included “common sense” at point (v).
It reminds me of the joke where a wife sends her husband to the shops with a note: “Please get two pints of milk. If they have eggs, get six.” The husband returns with six pints of milk.
Josh Lewison
Radcliffe Chambers
Aren’t we in danger of being over-literal here? Surely X is “unable” to act if she is dead, so the substitution of Z applies.