Residuary Gift in Will and inheritance issues

A testator wants to make provision in his will for a residual share which he might receive when his Father passes away. The Father has made a homemade will splitting his estate several ways. There is adequate description in terms of all of the other shares as to how these will pass if the intended beneficiaries should predecease. However, the substitutionary provision in terms of the share he will receive is not left to a specific person. Instead there is a vague reference that it shall pass as set out in his own (ie the son/testator’s) will.

In other words, if he dies before the Father, the intention is that it is to pass to the residuary beneficiary of the testator’s estate (ie that being as per the son’s will).

Is it enough to simply expect this to fall into the residuary estate of the testator (if the testator should die first) or should there be some specific reference within the testator’s will to any potential inheritance that they might in the future receive.

The Father is not able to change his will to address any issues of uncertainty.

Evelyn Barker
Joanne Ball Solicitor

Whilst I cannot quote chapter and verse, I recall that such a gift has been held to be invalid.

However, I further recall that such an arrangement might be effective if cast as a gift to the executors of an individual’s will. However, the gift would need to be a secret trust (the executors can separately be informed of the intentions by separate note included with the father’s will so that s.143 IHTA 1984 might also be invoked).

I suggest that if drafting a provision to cover the client’s wishes, it would be useful to involve Chancery counsel.

Paul Saunders FCIB TEP

Independent Trust Consultant

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