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Survivorship clause without a time limit specified

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  • Survivorship clause without a time limit specified

    I'm currently dealing with an estate where the deceased left a will which contained the following clause:

    "I GIVE the residue of my estate (out of which shall be paid my funeral and testamentary expenses and my debts) to ANDY, PAUL and PETER equally between them or the whole to the survivor."

    Unfortunately Andy passed away about two and a half months after the deceased did. All my online research so far suggests that survivorship clauses typically specify a period of time in which a beneficiary has to survive in order for their estate to receive their share of the inheritance however, no time limit exists in the clause above. Therefore, does anyone know what should happen to Andy's share of the estate in this case?

    I knew the deceased very well and I believe it would have been his intention to ensure that only the three beneficiaries named would benefit and not the beneficiaries of Andy's estate, whom he didn't like that much and chose not to include in his will in the first place. Has he covered this scenario using the wording above?

    Thanking you in advance.
    Tags: None

  • #2
    The will speaks from death unless some other period is specified. Since no other period is specified, it speaks from death. The gift to Andy applies, and the gift goes to his estate.

    Sorry.

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    • #3
      or the whole to the survivor." ................. would seem to suggest that in the event of a death then the amount due to the one who has died would be added to the amount due to the survivors and not to Andy's estate. As if two had died then the survivor would inherit all the estate.

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      • #4
        But, to be clear, the deaths would have to have occurred before the death of the testator.
        Lawyer (solicitor) - retired from practice, now in academia. I do not advise by PM.

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        • #5
          Originally posted by atticus View Post
          But, to be clear, the deaths would have to have occurred before the death of the testator.
          It sounds like "or the whole to the survivor" is a pointless term to have as if this is the case, then any death before the death of the testator would automatically rule that beneficiary out anyway.

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          • #6
            But he didn't die before the Testator so he has already inherited. If he had done his share would be split between the others by the sound of it?

            Comment


            • #7
              Originally posted by Sam101 View Post
              or the whole to the survivor." ................. would seem to suggest that in the event of a death then the amount due to the one who has died would be added to the amount due to the survivors and not to Andy's estate. As if two had died then the survivor would inherit all the estate.
              This was my original interpretation. As I mentioned previously I believe the testator would have only ever wanted his estate to pass to the three named beneficiaries and that by not including a timeframe for the survivorship clause, he intended the survivorship clause to last indefinitely after his death. So basically if you didn't survive until distributions are made from the estate - tough luck! I also considered the two scenarios regarding Andy's death:

              a) Andy passes away before the testator (in theory) - It's written in law that he would be removed as a beneficiary automatically. Therefore, why bother with the wording "or the whole to the survivor". This would happen anyway by law, so it seems like a totally irrelevant term to have.

              b) Andy passes away after the testator (as actually happened) - why use the word "or" in the wording? Surely by doing so the intention was to provide an alternative to the three way equal split but if Andy's estate will inherit his share, then no alternative distribution split is going to happen. If this wording was only intended to be used if a beneficiary passed away before the testator, it just brings me back to my point a) above.

              I must stress that this was my original interpretation. I'm not a solicitor with extensive knowledge of these matters, hence the reason for posting on this forum.

              Comment


              • #8
                Me neither, the other fellas would know a lot more than me. I had dealings with an estate where a beneficiary died 3 weeks before the testator(her father) the wording seemed to suggest that he wouldnt want anything to pass to grandchildren in that scenario but it seems the wording used wasnt enough to over ride S33. But your case is different again, and whether the fact that the estate hasnt yet been distributed makes any odds, I wouldnt like to say, but I cant see it. The clause couldnt last forever though could it?

                Comment

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