I am dealing with a will trust (not drafted by my firm) which leaves the residuary estate to the Trustees on trust to stand possessed of the income for the testator’s son during his lifetime and (ii) “after the death of my said son my trustees shall hold my Residuary Estate and the income thereof for A B and C or the survivor or survivors of them provided always that if any of them shall die in my lifetime leaving a child or children who shall survive me and attain the age of eighteen years then such child or children shall take and if more than on equally the share in my Residuary Estate which his her or their parent would have taken had such parent survived me.”
The life tenant has now died. A, B and C all survived the testator but B and C died before the life tenant. Does the gift to A, B and C vest on the testator’s death so that B and C’s share goes to their estates?
On the face of it, the gift is to those of A, B and C who survive the son, with an additional provision to save the gift for the beneficiary’s children should any of A, B or C die before the testator.
Whilst this would be a rather unusual provision, it is not without precedent.
In the absence of words of severance of the gift between A, B and C, the gift would appear to be a joint gift, rather than a gift of a third share each.
If the will file can be located, it would be useful to see that in order to determine the testator’s intention.
In the absence of evidence of the testator’s intention, depending upon the value of the trust fund, I suggest the trustees consider obtaining counsel’s advice before deciding on how to distribute.
I would read it as Paul, A B and C have to survive the life tenant before the gift vests so I don’t believe that it would pass to the estates of B and C. However then the gift over to the children of the B and C appears only to be drafted if A B or C die before the testator so a little confusing. I agree on getting counsels opinion on this one as it could be that it all goes to A because B and C did not die before the testator and therefore the gift over to the children doesn’t take effect.
I would seek Counsels opinion as I say and try to establish what was intended by obtaining the will file. It may be that they all agree to read it in a certain way and to complete a deed of that intention perhaps. If you have a good relationship with a Barrister maybe have a chat with them to see what they think should be done.
The last part of the testamentary disposition could be of help, in my
opinion.
As the child or children of the pre-deceased to the testator shall take
«… the share in my Residuary Estate which his her or their parent would
have taken* had such parent survived me*», could mean that the sole
condition for A, B or C to have the gift vested in them is to survive the
testator, irrespective of surviving to the life tenant.