Re the will of William Ian Southey

The Court held that where a testator names a beneficiary who does not exist (here, a fictitious identity used in an online romance scam), the gift to that beneficiary necessarily fails for want of a valid beneficiary. The Court further held that a gift over clause expressed as operating if the primary beneficiary 'fails to survive me' does not, on its ordinary meaning, encompass non-existence, since 'survive' presupposes prior existence. However, applying the rule in Jones v Westcomb, the Court extended the gift over clause to impliedly encompass the primary beneficiary's non-existence, finding that the testator's clear intention to avoid intestacy and to benefit the substitute beneficiary — evidenced by the language of the will and prior testamentary history — made it ineluctable that the gift over was intended to operate in these unforeseen circumstances.