Jump v Lister and survivorship clauses

Readers may have enjoyed a festive slump in a favourite armchair over the holiday period. In Boyes v Cook (1880) 14 Ch D 53, James LJ referred to a similar, if less festive, piece of furniture – the testator’s armchair in which judges must sit when construing the meaning of a will.

The construction case of Jump v Lister [2016] EWHC 2160 related to the interaction of survivorship clauses and the commorientes rule – which led to an unexpected (and, from the testators’ perspectives, unwanted) outcome.

John and Mabel Winson were found together in the matrimonial home with no indication of the order in which they had died. Under the commorientes rule (per section 184 of the Law of Property Act 1925), John, who was younger than Mabel, was deemed to have survived his wife.

John and Mabel executed mirror wills which had been prepared by the first defendant. In simple terms: (a) each left their estate to the other; (b) subject to point (a), John and Mabel left pecuniary legacies (totalling £234,500) to 23 beneficiaries; and (c) the residuary estate passed to their nieces.

The administrative provisions contained a not unusual provision that: ‘my estate is to be divided as if any person who dies within 28 days of my death had predeceased me’ (‘the survivorship clause’).

The question that arose was how the two estates should be administered. The will draftsman took a common-sense approach – Mabel’s estate should pass to John, as the survivor, and the pecuniary legacies should be paid to the 23 beneficiaries out of John’s estate. This was the intention of the testators. Effectively, the survivorship clause in Mabel’s will should not apply to her gift to John.

However, the executors’ position was that (a) the gift from Mabel to John failed because, although John was deemed to have survived Mabel, he did not survive her by 28 days; therefore (b) the primary gifts from Mabel to John, and from John to Mabel, failed; and (c) the pecuniary legacies would have to be paid twice (once from each estate).

The evidence before the court was that John had expressed concerns about such double payments being made and had been reassured by the draftsman that this would not happen. Extrinsic evidence of a testator’s intention may be admissible to resolve uncertainty or ambiguity, but HHJ Hodge QC found that there was no such ambiguity.

The survivorship clause used for the Winsons’ wills is referred to in Butterworths as an ‘omnibus’ survivorship clause (as opposed to one which is limited to the spouse or to the other legatees). The clear meaning of the words was that the survivorship provision should apply with no exceptions. There were, of course, ways that this ‘infelicity’ could have been avoided (e.g. by excluding the effect of the survivorship clause in respect of the primary gift).

At the conclusion of the judgment, HHJ Hodge QC noted that there was no rectification claim before the court. He considered that ‘the apparent mistake on the part of the will draftsman in failing to give effect to his clients’ apparent actual intentions can be cured, if at all, only by way of a claim for rectification, if that relief is available, and not by way of construction’.

There would have been two difficulties with such a claim. First, there was an absence of direct evidence of intention on the part of Mabel as to whether the primary gift to her husband was to be subject to the survivorship clause in the circumstances which had arisen.

Second, Lord Neuberger stated in Marley v Rawlings [2014] UKSC 2 that the concept of clerical error would not extend to activities involving ‘special expertise’. As the court made clear in Reading v Reading [2015] EWHC 946 (Ch), the use of a precedent clause in circumstances where this was inappropriate is not a ‘clerical error’ for the purposes of a rectification claim.

The outcome of the case is that neither spouse inherited the other’s estate – effectively both were deemed to have died before the other. As HHJ Hodge QC noted, this is a ‘somewhat surreal situation’ – but given that many events in 2016 were somewhat surreal, perhaps the writing was always on the wall.

In any event, it seems unlikely that this case has come to an end; a negligence claim against the will draftsman and his firm is likely to follow.

Testamentary capacity

Two recent cases provide useful illustrations of claims involving testamentary capacity, knowledge and approval, and undue influence.

In Edkins v Hopkins [2016] EWHC 2542 (Ch), the disputed will was executed days after the testator, Mr Hopkins, had discharged himself from hospital, where he was being treated for the effects of alcohol abuse. Mr Hopkins left the bulk of his estate to the claimant and appointed him as executor. The claimant had worked for Mr Hopkins for some years and had become his trusted colleague. Two of Mr Hopkins’ sons had succumbed to heroin addiction and there was evidence that he had been anxious to protect the family business from them. The court heard about Mr Hopkins’ alcoholism, including (unsurprising) medical evidence that ‘capacity can wax and wane’ in this situation.

There was no doubt that Mr Hopkins had become more and more reliant on a small group of people, including his wife and the claimant, as his health declined. Both the claimant and Mrs Hopkins accused the other of providing Mr Hopkins with gin despite his poor health. The judge, HHJ Jarman QC, placed weight on the evidence of the solicitor who had prepared the will and had been present when it was executed. She had found Mr Hopkins to be unwell, but she did not doubt his capacity to execute the will. On the balance of the evidence, the judge concluded that Mr Hopkins had sufficient testamentary capacity.

Mr Edkins had a high level of control over Mr Hopkins, not least in regulating his access to alcohol. However, HHJ Jarman QC concluded that such control was freely given by Mr Hopkins, not taken by Mr Edkins. He said: ‘It is not a far jump from those findings to an inference that such was the control by Mr Edkins over Mr Hopkins in his very vulnerable state that his free volition was overpowered, by a “drip drip” approach or otherwise. I have come to the conclusion, however, that such a jump on the facts of this case is a step too far.’ Therefore, the undue influence claim was dismissed, and the judge removed the caveat that had been placed against the estate.

Knowledge and approval

In Poole v Everall [2016] EWHC 2126 (Ch), Mr Poole had suffered serious head injuries in an accident and as a result received a significant sum which was held by his deputy. Mr Poole died in 2013, leaving a final will, executed in December 2012, under which his carer, Mr Everall, received 95 per cent of the estate. In Mr Poole’s earlier will, executed in February 2012, he had left only 2.5 per cent to Mr Everall and the bulk of the remainder to his brothers, the claimants.

Mr Poole’s deputy had arranged the February will and had recommended that Mr Everall should receive only a small legacy as he was paid for his care services. As a result, Mr Everall had tried, unsuccessfully, to have the deputy removed. Mr Everall then prepared the December will himself, using an online will-writing service. He recorded the meeting where he took Mr Poole through the will but did not explain in full the nature of the gift to himself.

Did Mr Poole understand what he was doing and the effects of the December will, such that the will represented his testamentary intentions? The onus of proving knowledge and approval fell on Mr Everall as the person seeking to propound

it. The circumstances were such as to arouse the suspicions of the court – as Lord Hatherley said in Barry v Butlin (1838) 2 Moore’s PCC 480, ‘a person who is instrumental in the framing of a Will… and who obtains a bounty by that Will… [has] thrown upon them the onus of showing the righteousness of the transaction’.

HHJ David Cooke found ‘the evidence that David fully understood the terms of the will and that they genuinely represented his testamentary intentions comes only from Mr Everall himself. It is to be approached with caution because of its self-serving nature. Even taken at face value, it is slight. Mr Everall did not read over the terms of the will to David; on his own account he left David to read the document himself, perhaps with the assistance of a supplemental document summarising the main gifts, though that is not apparent from the transcript he produced. The extent of his explanation to David of the terms of that will was “so there’s just me and Sue then and everything else is just basic”. This did not draw David’s attention to the extent of the actual gift in Mr Everall’s favour.’

Mr Everall had failed to discharge the burden of showing that Mr Poole knew and approved the terms of the will, and accordingly HHJ Cooke declared instead for the February will. He could not make a finding of undue influence because such a finding would presuppose that Mr Poole had actually understood the terms of the December will (but executed it due to coercion).

Adam Carvalho, pictured, and Richard McDermott are associates at Farrer & Co

@Farrer_Co www.farrer.co.uk

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