The Survivor Clause in Will Drafting
27 March 2020
What is the accuer or “survivor” clause
When drafting a will you will need to deal with the important point of gift over clauses. These are clauses that cater for a beneficiary pre-deceasing the testator. Every seasoned will drafter will need to ensure that these elements are discussed with a client during the consultation and that their checklists deal with these issues.
There are various solutions and in this blog, I am looking at clauses known as the “survivor” clause or the “accruer” clause. The concept is generally the same. The clause provides that where a bequest is left to a number of beneficiaries in equal (or unequal) shares and a beneficiary pre-deceases the testator then the bequest lapses and the bequest is divided equally among the remaining beneficiaries. So for example if a testator leaves their estate four ways but has used the accruer clause, then, in the event of a pre-deceased beneficiary, the estate is divided three ways rather than four.
You might ask. Does this not happen anyway? The answer is yes and no. It depends on the beneficiary and the nature of the bequest. I will deal with those issues in later blogs. What I am dealing with here is the question of how does a testator craft their will clause so that a bequest left four ways will be left three ways in the case of a pre-deceased beneficiary.
There are various ways of dealing with this. Spierin provides as follows:-
If any of the beneficiaries named in this bequest predeceased me, then the benefit that this beneficiary would have taken, had he/she survived me, shall pass in equal shares amongst the surviving beneficiaries under the bequest.
Brian E Spierin Wills. Irish Precedents and Drafting (Bloomsbury, 2nd ed. 170)
Spierin also has an excellent clause where there is a pre-deceased beneficiary but the benefits are not shared out equally. So that instead of the share of the pre-deceased beneficiary getting split out evenly amongst the surviving beneficiaries, the share is divided out in proportion to how the beneficiaries are receiving the estate. That is, the deceased share is divided out pro-rata amongst the surviving beneficiaries.
If any of the beneficiaries named in this bequest predeceases me, then the benefit that this beneficiary would have taken, had he/she survived me, shall be added pro rata to the shares of the surviving beneficiaries under the bequest.
In my view, you could deal with this situation by also stating:-
I GIVE DEVISE AND BEQUEATH my estate to my children that survive me at the date of my death in equal shares.
In the above case the bequest only passes to those children of the testator that survive or outlive the testator.
In Bloomsburys Laffoy’s Irish Conveyancing Precedents (Walsh et al) the authors deal with the matter in slightly a different way. Division R deals with wills. In the first precedent R 1.1. it states:-
In the event that [name] predeceases me I GIVE DEVISE AND BEUEATH my estate to my Trustees to hold on trust for my children [names] equally absolutely [or to the survivor/s of them]
So in this case the words “or the survivors of them” are used to express the accruer concept. However, I am not so inclined to use this wording as I think it is slightly confusing. Here the word survivors could be interpreted as “estate” or “successors”. At first reading, the wording, in my own view is not perfectly clear. In a husband and wife situation if husband A dies, we often say that wife B survives him. Could the above wording be read as providing that the bequest devolves to the estate of a pre-deceased child? That is, for example, the surviving spouse? Obviously the wording selected in the Mary Laffoy publication has been tried and tested and is generally used to express the accruer concept.
Whatever language is used, the important point is that the question of a pre-deceased beneficiary is brought to the attention of the testator and the issue is thought about carefully in all will drafting situations.
For more assistance or information with will drafting please contact Colm Kelly at firstname.lastname@example.org