“My Trustees shall hold the Trust Fund ON TRUST absolutely for such of my children as survive me and if more than one in equal shares Provided that if any child of mine dies before me but leaves a child or children alive at my death who reach the age of 21 then that child or children shall take absolutely… so much of the Trust Fund as that child of mine would have taken had such child survived me.”
The deceased died leaving three children, and one child who had who died five years before the Will was written who left one child of their own.
So, should the deceased child’s child benefit? I am inclined to think so, on the particular wording, but it could have been made more clear.
The added complication is that the estate has already been administered, but that’s another question.
At first sight I agreed with you, on both counts, but now doubts are beginning to creep in.
A will speaks from its date as to persons. The primary gift is to ‘such of my children as survive me’- clearly excluding one who had died five years before.
‘If any child of mine dies’ seems to me to refer to the children referred to in the primary gift, and ‘dies’ to children in the present or future - at the date of the will.
If there is evidence of ambiguity in the light of surrounding circumstances it is permissible to look at extrinsic evidence as an aid to interpretation.
The question I would really want to ask is whether the deceased knew that his or her deceased child had a child; this , and his or her intentions towards that grandchild, may be shown by the will draftsman’s file.
Thank you Tim for your thoughtful response. I was afraid someone would refer to ‘extrinsic evidence as an aid to interpretation’. Sadly the estate was administered two years ago and is low value, less than a £100,000. However, the grant was extracted by a solicitor so I would like to think the issue was addressed and if instructions are received, then I can perhaps shed more light on the matter. I presume that there is no doubt that there is ‘ambiguity’ in this matter which therefore warrants the need to look at extrinsic evidence?
If the draftsman was aware of the circumstances and had instructions to exclude the grandchild, I would hope that this is not how he or she would go about it. He/she would surely have been more explicit by naming the relevant surviving children or expressly excluding the grandchild.
If you accept that, then the only realistic interpretations I can think of are that: (a) the testator intended to include the grandchild and testator/draftsman believed the wording would work (which is not unreasonable) or (b) the testator didn’t know of the existence of the grandchild
Slightly less realistic - the testator was not aware of the death of the child.
If the testator knew of the grandchild, then (absence an attendance note) I would struggle to argue that this will was intended to exclude him when such a significant step would surely have been made clear…