A Will includes a life interest to spouse of a half share of a house, and the default gift is on her death it falls into residue. The spouse takes residue absolutely. If she had not survived, residue would have gone to the deceased’s two children equally.
Is it reasonable to rely on an interpretation that the default gift should have said the trusts of residue in clause X, ie the clause referring to the two children-without going to counsel/court? This is clearly what was intended.
It certainly looks as though there has been an omission in the drafting. I suggest the first step is to review the will instructions to verify the testator’s intentions.
In any event, if the widow and children are agreed that the gift over of the property should have aligned with the default gift of residue to the children, a simple deed of variation may suffice. Whilst this could have negative consequences for CGT and income tax, these should largely be nullified if the widow is given an IPDI under the variation.
In your case, if the wife has died, would the same two children inherit? Possibly not, if it is a second marriage.
Possibly, if the wife has not died, the wife is entitled to the whole of the half-share (income and capital) and could require the half-share to be transferred to her, but that will turn on the precise wording of the trust. Sometimes the intention is that the property passes to the estate of the spouse after the spouse’s death and there are sufficient other provisions to prevent the spouse being absolutely entitled (eg overriding powers of appointment, or similar).
In my opinion, you have to look at what the Will actually says. If the Will is clear and unambiguous in its language, I would find it difficult to say that the Will must be construed as the two children being entitled under the Will. However, if there is no objection from those who would have inherited via the actual wording, and if there is no legal way to correct matters without a detrimental tax charge (eg DofV, assignment of reversionary interest, etc), then it will be a question of whether HMRC require an application to court in order for them to accept that the “intended” position is how the Will should be construed, especially if there would be some potential tax charge. If any person who would be losing out objects, then you certainly will need to go to court.
In a very different situation, but one where it was equally clear that a mistake had occurred, we wrote to HMRC and they agreed to dispense with the need for formal court application.
The Will is straight forward-life interest in the half share of the house for the widow, and subject to that it falls into residue, which was left absolutely to the widow. In default, residue goes to the children of the deceased’s first marriage.
The wording is unambiguous, but makes no sense. Why would you leave a life interest in a half share of a house to the widow, if you wanted her to have it absolutely in any event? It is clearly a drafting error and the Will file bears this out. The deceased died 4 years ago.
The widow could be asked if she would like to leave the half share to her stepchildren, or put it into trust now-seems unlikely to appeal.
If “clearly a drafting error” borne out by the will file, and the widow is uncooperative in resolving the error, it seems to me that an application for rectification might be the only practicable way forward.
The will drafter should probably be put on notice of the potential claim so that they can engage with their insurers.
If the drafter is no longer around and no insurer can be located, perhaps the widow should be made aware that as the costs of the application will be incurred as a result of her refusal to cooperate in ensuring her late husband’s true intentions were complied with, the executors may be entitled to recover their costs of the application from her.