I am instructed on a probate matter where the Will creates a LIT over 1/2 the house (which has been severed) for the surviving spouse. My query relates to the drafting of the remaindermen interest:
Clause 6 states that the property fund shall be held upon trust for the life tenant for life & subject to that held ‘upon the like trusts as are declared below in relation to the Trust Fund’.
The Trust Fund appears to refer to the residue which is left to the spouse if she survives by 28 days and subject to that to the children.
My reading of this is that the remainderman is the person entitled to the residue who is, of course, the life tenant (for the sake of completeness she has survived 28 days). I am wondering whether it is safe to ‘interpret’ this as reading the residue clause as if the LT had died? If not I was wondering whether the effect is to extinguish the trust as the LT and remainderman are the same person and therefore she has the entire interest.
I have seen this drafting before in Wills which I have been replacing and wonder whether my reading of it is wrong or whether it is bad drafting where the spouse/children are dealt with in the same residue clause?
Any help or guidance would be greatly appreciated.
Thomas Simpson Solicitors