Gift of Property - Poor Drafting

(Damian Lines) #1

I have been asked to comment on the validity of the following clause (not drafted by my firm!):
“I give to A and B my house at (ADDRESS), but if they decide to sell the property it shall form part of the residue of my estate”

I cannot be an absolute gift (as there is the ‘but’ provision). I think it is either void through uncertainty and falls into residue, or there is a life interest created in favour of A and B which terminates on sale.

What do other members think?
Damian Lines
Rubin Lewis O’Brien

(iain.cameron) #2

It could be a right to reside IPDI, but I would want to take Counsel’s opinion to cover my … insurance.

Iain Cameron
Acer Legal

(Carmen Cottingham) #3

Is there an extension to this clause?

Carmen Cottingham
Cottingham Legal Wills and Probate Limited

(Christian Nicholls) #4

This sounds more like a life interest, given they are completely restricted from access to the capital (proceeds of sale). Is a DoV possible between the specific and residuary legatees?

Christian Nicholls
Nicholls Brimble Bhol

(Damian Lines) #5

No, that is the entire clause. There is then a gift of residue to four people in equal shares including A and B.

Damian Lines
Rubin Lewis O’Brien

(d.holliday) #6

In the absence of any notes taken by the drafter or communication with the testator which would indicate their intention, I think this is a condition subsequent; consequently unenforceable by the executor and so void. The gift falls into residue.

D Holliday

(Richard Bishop) #7


If we assume ‘testamentary freedom’ then you have a contingent IIP.

A&B are the life tenants, with whomever is entitled to the residue as remainderman. The contingency is valid IMO, similar contingences concerning remarriage and cohabitation.

We assume they would never sell?

I think you’d end up with a s.20 AJA 1982 claim from the residue beneficiary at some point if they enter care or both die without selling.

Richard Bishop

(malcfinney1) #8

The gift would seem to be subject to a condition subsequent, the condition itself not being void.

Failure to observe the condition causes the beneficiary to lose his entitlement.

Malcolm Finney