Help please im getting myself tangeld and as a sole practitioner I think I am over analysing what I have always been trained to draft like and that I have never really questioned! If we take all iht issues out of the drafting below and focus just on whether the gifts are contingent or vested it would really help me – I appreciate the age restrictions on grandchildren and default clause of the nieces and nephews are all negative from a tax point of view.
I have always been trained upon the following basis
I GIVE the whole of my estate TO my Trustees to pay my funeral and
my debts and then for such of my children ……………… and ……………… as shall survive me and who shall reach the age of twenty-five years and if more than one of them in equal shares or if any or all of them shall die before me or after my death but before reaching the age of twenty-five years leaving a child or children (who may be born after my death) (and who shall reach the age of twenty-one years aware RPT) such child or children shall take and if more than one in equal shares the share in my estate which his her or their parent would have taken if they had survived PROVIDED ALWAYS that if the above trusts shall fail my Trustees shall hold my estate for my nieces and nephews …………………………………….as shall survive me (and who shall reach the age of 21)(include if this is what the testator wants but RPT) and who shall be living at the point that the Trusts shall fail and if more than one of them in equal shares or all to the survivor of them
My queries and what I need clarity upon are:
Is the wording as shall reach the age of twenty-five enough to make this gift contingent? Or is it when reading the will as a whole that it is then made contingent? If not contingent on its own is it better to put if they reach the age…
Does the default clause to the nieces and nephews work in the event of say both children of the deceased surviving testator but dying before the age of 25 their children being alive at that time but then them dying before they are 21 (unlikely scenario I know) is the grandchildren gift contingent as well and therefore the default kicks in to the nieces and nephews. ? Does putting an age restriction upon the grandchildren stop the effect of the default clause do you think.
If the clause doesn’t do as I think and as I have always been trained would it be better to draft as follows:
I GIVE the whole of my estate TO my Trustees to pay my funeral and
my debts and then for such of my children ……………… and ……………… as shall survive me and only if they reach the age of twenty-five years and if more than one of them in equal shares or if any or all of them shall die before me or after my death but before reaching the age of twenty-five years leaving a child or children (who may be born after my death) (and only if they reach the age of twenty-one years) such child or children shall take and if more than one in equal shares the share in my estate which his her or their parent would have taken if they had survived PROVIDED ALWAYS that if the above trusts shall fail my Trustees shall hold my estate for my nieces and nephews ……………………………………. shall survive me (and only if they reach the age of twenty-one years) and who shall be living at the point that the Trusts shall fail and if more than one of them in equal shares or all to the survivor of them
The wording has changed to say “only if they reach” the age of twenty-five or twenty-one.
I know the risk of these scenarios in reality are unlikely to occur but I want to properly understand what I am drafting and I getting myself tangled on something that is probably very basic.
Also if the consensus is the second clause is the better way should I worry about how I have always been trained to draft?
Lynsey Bashforth
Bashforth Young Solicitor