Survivorship clause in Last Will and Testament

JoeEngland

A few years ago I had a LWaT drawn up by a solicitor which had this clause:

4.2 MY TRUSTEES shall hold the Trust Fund upon the following trusts absolutely:
4.2.1 as to a 100% share thereof to my Wife the said ... if she actually survives me for Twenty Eight days

I want to add a clause for if my wife doesn't survive me by 28 days (e.g. if we both died in an accident) and plan to do this by writing a new Will using the existing one as a template. Is there a specific wording that has to be used, or can I just use similar wording and add this:

4.2.2 as to a 100% share thereof to my Brother the said ... if my Wife the said ... does not actually survive me for Twenty Eight Days

I've done some Googling but can't find a definite answer.

getmore4less

There is a IHT interaction with survivorship clauses and commorientes and married/civil partners

I don't understand it enough to know if it may be relevant for your situation.

Marcon

JoeEngland said:

A few years ago I had a LWaT drawn up by a solicitor which had this clause:

4.2 MY TRUSTEES shall hold the Trust Fund upon the following trusts absolutely:
4.2.1 as to a 100% share thereof to my Wife the said ... if she actually survives me for Twenty Eight days

I want to add a clause for if my wife doesn't survive me by 28 days (e.g. if we both died in an accident) and plan to do this by writing a new Will using the existing one as a template. Is there a specific wording that has to be used, or can I just use similar wording and add this:

4.2.2 as to a 100% share thereof to my Brother the said ... if my Wife the said ... does not actually survive me for Twenty Eight Days

I've done some Googling but can't find a definite answer.

If your solicitor included a survivorship clause (standard stuff and very sensible), didn't they also include 'what if....' provisions? The problem with DIY wills is that you can inadvertently introduce uncertainty or downright contradiction, which can make life more than difficult to sort out for the executors, not to mention the beneficiaries.

TBagpuss

What does your current will say will happen if your wife dies before you or fails to survive you by 28 days? If it was drawn up by a solicitor I would expect it to cover that eventuality.  Is the issue that you are changing the beneficiary from someone else to your brother, or that you don't think your existing will deals with the issue at all? 

Generally with wills, there isn't an absolute rule that particular wording must be used, but it is essential that the meaning and intention  is clear and unambiguous, so there are standard, tried and tested forms of words which tend to be used by professionals because it reduces the risk of a will being unclear. There are also some terms which do have a specific legal meaning so you can unintentionally use terms which alter the effect of what you are trying to do.

There are also rules about some kinds of inheritance which affect whether you need to explicitly spell out your wishes or not.

As Marcon says, the problem with DIY wills is that because you don't deal with wills on a regular basis, there is a much higher risk that you don't include provisions which cover all eventualities, or that you use wording which leaves room for different interpretations, or make assumptions about what will happen which are not correct. 

Mojisola

TBagpuss said:

or that you use wording which leaves room for different interpretations

I had an example of this when I gave our solicitor instructions for what would happen in a particular circumstance - I thought I'd been very clear but he read it differently and incorporated his interpretation in the draft will. When I saw his take on what I'd said, I could see how it could be read that way.
Once I'd explained what I actually wanted, he was able to phrase it in a way that couldn't be misinterpreted. 

MovingForwards

You need to give the wife 100% first, with the 28 day clause and then say if she doesn't survive you for 28 days your estate passes to X, Y and Z and possibly include another clause in case X, Y or Z have a freak accident.

For the sake of about £200 for mirror wills, get a solicitor to do them. If you're unsure about what they've written in the draft version ask for clarification.

EasySolution

As "Getmore4less" says there is a big implication for IHT under certain circumstances so best to take professional advice. 

JoeEngland

Marcon said:

JoeEngland said:

A few years ago I had a LWaT drawn up by a solicitor which had this clause:

4.2 MY TRUSTEES shall hold the Trust Fund upon the following trusts absolutely:
4.2.1 as to a 100% share thereof to my Wife the said ... if she actually survives me for Twenty Eight days

I want to add a clause for if my wife doesn't survive me by 28 days (e.g. if we both died in an accident) and plan to do this by writing a new Will using the existing one as a template. Is there a specific wording that has to be used, or can I just use similar wording and add this:

4.2.2 as to a 100% share thereof to my Brother the said ... if my Wife the said ... does not actually survive me for Twenty Eight Days

I've done some Googling but can't find a definite answer.

If your solicitor included a survivorship clause (standard stuff and very sensible), didn't they also include 'what if....' provisions? The problem with DIY wills is that you can inadvertently introduce uncertainty or downright contradiction, which can make life more than difficult to sort out for the executors, not to mention the beneficiaries.

The strange is that the solicitor didn't add a survivorship clause, only how the money is to be distributed to beneficiaries if they survive me by 28 days. At the time I didn't realise the implications, and I'm changing the beneficiaries anyway.

JoeEngland

TBagpuss said:

What does your current will say will happen if your wife dies before you or fails to survive you by 28 days? If it was drawn up by a solicitor I would expect it to cover that eventuality.  Is the issue that you are changing the beneficiary from someone else to your brother, or that you don't think your existing will deals with the issue at all?

I'm changing the beneficiaries so that my wife is now the sole beneficiary if she survives me longer than 28 days. The existing will doesn't stipulate what happens if the beneficiaries didn't survive me so I want to add that in. I'm hoping that my proposed clause for my brother to benefit if my wife doesn't survive me is clear.

Keep_pedalling

JoeEngland said:

TBagpuss said:

What does your current will say will happen if your wife dies before you or fails to survive you by 28 days? If it was drawn up by a solicitor I would expect it to cover that eventuality.  Is the issue that you are changing the beneficiary from someone else to your brother, or that you don't think your existing will deals with the issue at all?

I'm changing the beneficiaries so that my wife is now the sole beneficiary if she survives me longer than 28 days. The existing will doesn't stipulate what happens if the beneficiaries didn't survive me so I want to add that in. I'm hoping that my proposed clause for my brother to benefit if my wife doesn't survive me is clear.

in which case you also need a clause that covers him pre -deceasing you as well