I an administering an Estate, in which the Will reads:
"I give the capital and income of my Estate to [my Trustees] to hold on the following trusts:
8.1 The income of the residue of my estate shall be paid to my daughter C during her lifetime and my Trustees may pay or transfer any capital to my daughter outright or apply it in any other way for her benefit.
8.2 To the extent that any part of the residue of my estate has not been effectively advanced under the above power or if C dies before me or if this gift in her favour lapses for any reason the next clause shall apply.
8.3 The capital and income of the residue of my estate shall be held in trust for such of C’s children as survive me and attain 21 years and if more than one in equal shares absolutely
8.4 If C dies before me leaving no children who survive me or who survive me and attain 21 years then the residue of my estate shall be held on trust for such of my stepchildren A and B as shall survive me and if more than one in equal shares absolutely;
8.5 If the trusts declared in clauses 8.1 to 8.4 fail I give the capital and income of the residue of my estate to Y absolutely.
C has not yet benefited from the life interest and is considering disclaiming/surrendering it. She does not currently have any children. Am I correct in thinking that, if she does so, clause 8.3 would fail because there are no children, clause 8.4 would fail because C hasn’t died before the deceased, so the Estate would pass to Y?
Presumably the fact that C’s children must survive the deceased in order to receive under 8.3 means they must have been born at the date of death so any future children will not inherit.
Tobias Gleed-Owen
Hewitsons LLP