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  • When dealing with a gift in a will, the word ‘survive’ has two different meanings.
  • The meaning used depends on construction of the will as a whole and the surrounding circumstances.
  • Where there is a heightened risk of a dispute about the meaning of ‘survive’, the testator should define its meaning in the will.

Many texts with precedent will clauses use the expression ‘survive me’ or a close variant, like ‘survive [another person]’. This beguiling expression is frequently adopted by solicitors drafting a ‘gift over’ clause where property is given to an alternate beneficiary if the gift to the primary beneficiary fails because of the primary beneficiary’s earlier death: ‘If X does not survive me, I give’.

The expression also appears in the legislation. For instance, Succession Act 2006 (NSW) s 108 (‘Succession Act’) states ‘A person is not entitled to participate in the distribution of an intestate estate unless the person survives the intestate’.

This points to the expression having a consistent meaning which ensures certainty when distributing a deceased person’s estate. The reality is different as courts have consistently recognised that ‘survive’ has two meanings. It is for this reason that, when the expression is used in section 108 of the Succession Act, its meaning is defined in s 107.

Section 107 states:

(1) A person will not be regarded as having survived an intestate unless –

(a) the person is born before the intestate’s death and survives the intestate by at least 30 days, or

(b) the person is born after the intestate’s death after a period of gestation in the uterus that commenced before the intestate’s death and survives the intestate for at least 30 days after birth.

This definition ensures that, in relation to an intestacy, the expression refers to only one of the two possible common law meanings discussed below.

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