Write the right will: The perils of clauses

For those who think that will drafting is a relatively straightforward job, this recent example in the High Court just goes to showy how easy it can be to overlook an obvious outcome.

Violet Hamblen-Thomas died in 1973 leaving the residue of her estate on trust for her son Edwin and on his death to his children. In the event that Edwin died childless then the estate was to pass to her friend Enid, and if Enid had predeceased her then to Enid's daughter, Victoria.

Edwin did indeed die without children in 2014 and so it would appear that the estate should pass to Victoria as Enid had already died. BUT, Enid died after Mrs Hamblen- Thomas in 1998 and not before as the will had specified for this clause to take effect. It was therefore not clear to the executors who should inherit the residue in these circumstances as they had not been explicitly provided for in the will. 

On the face of it, it appeared that the laws of intestacy may apply but the executors applied to the court for guidance who sensibly ruled that the estate should pass to Victoria.

The time and money expended in resolving the case could easily have been avoided had the will been subject to more rigorous drafting.  A default or backstop position should always be included and the order of deaths of residuary beneficiaries never presumed, but clearly stated.

Gift, contingent on order of deaths, passes according to testatrix's presumed intentions”