The English High Court has recently held that, in a case concerning construction of Wills, the ordinary and natural meaning of survivorship clauses should be given effect to.[1] This operated to mean that certain beneficiaries under the Wills of a husband and wife benefitted twice, which the parties agreed was not the couple's intention. The claimants were the executrices of the couple's estates (and also beneficiaries of the estates). They wished to know how to distribute the estates. The claimants wanted the Court to interpret the Wills in accordance with the couple's intention. This would have meant that they received less under the Wills than they would have done if the Wills were interpreted in their ordinary and natural terms. The defendants were the solicitor who drafted the Wills and his firm.

The case is a reminder to executors of the importance of administering estates in accordance with the terms of the Wills. The case is also a reminder to draftsmen of the importance to accurately convey a testator's intention when drafting a Will.


A husband and wife were both found dead in their home leaving mirror Wills. Under the terms of their Wills, they each left their estate to the other if each survived the other by 28 days. However, in the event that that gift failed they each provided for the disposal of their personal chattels, left pecuniary legacies to the same named individuals and charities and left the residue of their estate to the claimants, also being the executrices of the Wills.

It was not possible to determine which of the couple died first. Therefore, it was not in dispute that the husband, being the younger of the pair, was deemed to have survived his wife. This was so because of the "commorientes rules" under statute. Therefore, under the husband's Will the gift of residue in favour of his wife failed because she was deemed to have pre-deceased him. The husband's Will fell to be distributed in accordance with the provisions in the remainder of his Will.

The key issue for the Court was to determine whether the survivorship clause meant that the wife's gift of residue to her husband also failed. If so, then her Will would also fall to be distributed to the same named individuals and charities as the husband's Will with the residue going to the claimants. The result of this would be that the named individuals and charities would benefit twice (once from the husband's estate and once from the wife's). This was not the couple's intention. Instead, they had intended that in such circumstances other beneficiaries would take the estate of one of them so no beneficiary would benefit twice.

The claimants brought the claim in their role as executrices in order to ascertain how to administer the estates. It was the claimants' position that the correct interpretation of the wife's Will was that the survivorship clause meant the wife's gift to her husband failed. This was so because the wife's Will required the husband to survive her by 28 days in order to inherit her estate. It was the defendants' position that the survivorship clause did not apply to the gift of residue to the husband because inter alia the overall purpose of the Will and the facts known or assumed by the parties at the time the Will was executed did not suggest it should. It was common ground between the parties that the husband and wife did not intend beneficiaries to benefit twice.


The Court held that on true construction of the wording of the Will, the survivorship clause meant that the residue gift in favour of the husband failed. In so holding, the Court examined the principles of construction, noting that the starting point was to give the words of the Will their ordinary and natural meaning. The ordinary and natural meaning of the survivorship clause was that anyone who was named in the Will must survive the testator by 28 days in order to take under the Will. The fact that the husband died within 28 days of the wife meant that the gift to the husband failed. This failure could have easily been avoided by different drafting, for example by excluding the effect of the survivorship clause in respect of the relevant spouse and/or the primary gift.

The Court commented that the apparent mistake on the part of the draftsman in failing to give effect to his clients' apparent actual intention may have been capable of being cured through a claim for rectification. However, such a claim was not brought before the Court so the Court declined to rule on it.


The case serves as a reminder that in considering claims of Will construction, the Court will start by considering the natural and ordinary meaning of the words. If the words are clear and unambiguous then that unambiguous meaning will be given effect to as the testator's intention. This was despite in this case the unambiguous meaning being at odds with the apparent actual intention of the testator.

For draftsmen, it is important to remember to draft in a way which gives effect the client's intention. Failure to do so may give rise not only to dispute as to the meaning of the drafting, but also a potential negligence claim. For executors, it is important to remember your duties in administering the estate and the necessity to administer the estate according to the terms of the Will. This is true even if you know this to be contrary to the testator's actual intention.

[1] Jump and another v Lister and another [2016] EWHC 2160 (Ch)


For more information, please contact Richard Norridge, Joanna Caen or your usual Herbert Smith Freehills contact.

Richard Norridge
Richard Norridge
+44 20 7466 2686
Joanna Caen
Joanna Caen
Senior Consultant
+852 2101 4167