The testator, a divorcee had already made a will leaving his estate to his wife, with a proviso that if she predeceased him or did not survive him for one month his estate should go to the Imperial Cancer Research Fund. He died in 1963. His former wife survived him and claimed under the will.
Held: The court applied the 1837 Act, which provided that, where a testator is divorced after having made his will, any devise or bequest to his former spouse shall lapse, except in so far as a contrary intention appears by the will. The gift over did not take effect. The word ‘lapse’ in section 18A(1)(b) meant no more than ‘fail’. It did not mean ‘fail with the same consequences as if the former spouse had predeceased the testator’. Since neither of the two contingencies on which the gift over was to take effect had occurred, the estate devolved as on the testator’s intestacy. ‘I am bound to say that I have some sympathy with the fund, because, like the deputy judge, I have more than a sneaking suspicion that, if the testator had addressed his mind to the contingency which in the event happened, he would have wished the estate to go to the fund. However one cannot, I think, possibly say with any certainty that merely because this testator in 1958 intended that his estate should go over to the fund if his wife should predecease him, he would necessarily and a fortiori have intended that the same results should ensue if the marriage ended by divorce during his lifetime. As the deputy judge pointed out, the truth of the matter is that, when he made his will, he clearly did not address his mind in any way to the unhappy contingency of a future divorce. It would not, I think, be open to the court to rewrite the will by adding other specific contingencies to those clearly expressed in clause 4 on the basis of mere intelligent speculation as to what the testator might have intended if his marriage were to end in divorce. It could only be done, if at all, by a process of necessary implication, …’
 Ch 446
England and Wales
Cited – In re Heather Elizabeth Jones Deceased, Jones v Midland Bank Trust Company Limited; Perry and Others CA 17-Apr-1997
The will gave the residue of the estate to the testatrix’s son, but if he predeceased her to her nephews. The son was convicted of her murder. The court had to decide whether the gift fell into residue, when the son requested the court to disapply . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate
Updated: 05 July 2022; Ref: scu.211376