We have an estate where F died in 1965 leaving a Will containing the following life interest:
“My Trustees shall hold the net proceeds of such conversion and my ready money:-
a) Upon Trust to pay all my debts and funeral and testamentary expenses
b) Upon Trust to invest the residue in their names in the purchase of such stocks funds shares or securities of whatsoever nature and wheresoever and whether involving liability or not as my Trustees shall in their absolute and uncontrolled discretion think fit and shall stand possessed of such investments and of all parts of my estate for the time being unsold (hereinafter called my residuary estate)
c) Upon Trust to pay the income thereof to my daughter D during her spinsterhood
d) On the marriage of my daughter D my Trustees shall hold my residuary estate in trust for my daughters D and B in equal shares
e) On the death of my daughter D without having married my Trustees shall hold my residuary estate and the future income thereof in trust for my said daughter B absolutely”
D is alive and has never married but has since lost capacity. She remains the current life tenant of the estate.
B died recently.
In 2017, B signed a Deed of Variation leaving her interest to her two children J and I.
My thoughts are that B had no ownership rights in 2017 to vary her interest at that time as she only had a contingent interest subject to D’s life interest. Do forum members agree?
In which case, she hasn’t actually varied the distribution of the estate on D’s death? This is important as J and I wish to consider varying their interests too but the same assets can’t be varied twice.
Presumably the same also applies in that J and I can only vary their interest under a Deed of Variation on the death of D and not before?
One suspects they are looking to redirect their interest as a gift rather than disclaim and relinquish all control over the redirection.
The next question is whether the estate now passes under s33 or as a partial intestacy to F’s estate, although realistically, the same beneficiaries would inherit either way.
Many thanks in advance.
Swayne Johnson Solicitors