Vesting date for remaindermen

Trusts Discussion
1

Will creates a Life Interest Trust for A until the “distribution date” which is then defined as upon A’s death or A relinquishing etc. The Will continues "on and upon the distribution date to pay the fund as follows: -

As to a x% share to my B absolutely and if B shall fail to obtain a vested interest leaving issue who are living upon the “determination of the trust” then such issue shall take etc…

Does B have to survive the Testator or A to acquire a vested interest?

I think what is throwing me is the further wording in relation to issue of B taking by substitution. It was always easier when we used words such as “shall survive me”!

Justin Wallace
Brewer Harding & Rowe

2

Is not the answer dependent upon whether B’s interest is contingent or vested?

Is it arguable that the reference as to what should happen should B fail to take a vested interest suggests that B’s interest was intended to be contingent on B surviving A.

In the absence of such specific wording then B’s interest would have vested (albeit not in possession) as soon as the trust was created.

Malcolm Finney