Class Closing Rule

Can I ask for advice about the following clause in a will? It relates to a gift by substitution:

“25% of my residuary estate to [name of beneficiary] and if [named beneficiary] shall fail to obtain a vested interest leaving issue who survive me and reach the age of 25 years then such issue shall take by substitution and if there shall be more than one such issue they shall take in equal shares per stirpes but so that no issue shall take whose parent is alive and so capable of taking.”

My question relates to the age contingency and the class closing rules. If:

  • the named beneficiary (“B”) predeceases the testator, leaving more than one child;
  • the testator (“T”) then dies;
  • at the time of T’s death B’s children are all under 25

Then, is it only the first of B’s children to reach 25 who takes under the clause, effectively blocking out the younger issue?

This does not appear to be the intention, but I wonder if it is an effect of the drafting? I note that Kessler suggests not using drafting which may engage the rule in Andrews v Partington. However, I’m not sure that I’m properly understood the rule in A v P.

Many thanks in advance

"

Under the rule in Andrews v. Partington the class closes when the first beneficiary attains the specified age, in this case 25.

In the present instance, though, there is a double requirement – that the issue survive the testator (i.e. are alive or env entre sa mere) and that they attain age 25 years. Accordingly, Andrews v. Partington does not apply, as the will specifies the class closes on the death of the testator, remaining open only to admit any that are already conceived, but unborn, as at that date.

When the first of the issue attains age 25, they will take their share by reference to the number of qualifying issue then alive. The younger ones will take their individual shares when the each attain 25. Should any die before that age, their “share” will be divided amongst the others, including those who have already been “paid out”.

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals

Paul,

Thank you for this incredibly helpful reply. This confirms that I had not properly understood the rule in A v P! I’m grateful for the clarification

Mark