Omnibus Survivorship Clauses
Wills for two people hade been drafted with survivorship clauses which provided for others according to the order in which they died, but in the event, having died together it had been impossible to say which died first. The parties disputed the effect of an omnibus survivorship clause.
Held: ‘the question is not one as to the meaning of the survivorship clause but rather as to its application. Is it what has been termed an ‘omnibus’ survivorship clause, which applies throughout the will generally, or is its application confined to the secondary gift, which takes effect only if the primary gift to the spouse of the maker of the relevant will fails?’ This was not a case of a mistake in the draughtsmanship.
As to the burden of costs: ‘I am entirely satisfied that in this case the defence has been conducted, through Mr Hewitt, perfectly properly but for the benefit of the defendants themselves (or their professional indemnity insurers). The construction issue has been defended, not for the benefit of the estate, but for the benefit of the solicitors. They have lost; and, in my judgment, costs should follow the event. So I will order the defendants to pay the costs of this Part 8 claim. That is entirely separate from the outcome of any related professional liability claim.’
Hodge QC HHJ
 EWHC 2160 (Ch)
Administration of Justice Act 1982 21
England and Wales
Cited – Boyes v Cook CA 1880
When construing a will, , extrinsic evidence is admissible not only to remove ambiguity in the language used, but to establish the testator’s situation at the time of the will and the context in which he expressed his testamentary intention. James . .
Cited – Marley v Rawlings and Another SC 22-Jan-2014
A husband and wife had each executed the will which had been prepared for the other, owing to an oversight on the part of their solicitor; the question which arose was whether the will of the husband, who died after his wife, was valid. The parties . .
Cited – Sammut and others v Manzi and others PC 4-Dec-2008
(the Bahamas) The court was asked to construe a will.
Lord Phillips said: ‘The starting point when construing any will is to attempt to deduce the intention of the testator by giving the words of the will the meaning that they naturally bear, . .
Not applicable – Chartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .
Cited – Re Buckton, Buckton v Buckton ChD 1907
An application was made for the payment of the costs of the action from the deceased’s estate.
Held: Kekewich J identified three situations where an issue might arise about the payment of legal costs out of a fund. First, a trustee may seek . .
Cited – Reading v Reading ChD 2015
The court was asked to construe a provision in the will.
Held: Ultimately a reference to ‘issue of mine’ was to be read to include the testator’s stepchildren despite initially observing that: ‘The ordinary and natural meaning of the word . .
Cited – The Royal Society v Robinson and Others ChD 17-Nov-2015
Claim to construe a Will or in the alternative to rectify it, or in the further alternative for it to be admitted to probate with certain words omitted.
Held: The court construed a reference to ‘the United Kingdom’ as including the Channel . .
Cited – Slattery and Others v Jagger and Others ChD 10-Nov-2015
The court read the words ‘to my wife’ into a specific devise of a property from which they had accidentally been omitted by a process of construction. . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate
Updated: 02 November 2021; Ref: scu.570846