I would be grateful for views on the following clause which relates to a life interest trust of a share of a property held as tenants in common:-
‘My Executors shall hold the Property Fund and income from the Property until sale for my husband for his life and after his death marriage or cohabitation with another woman as husband and wife for such of them my children A and B or to the survivor irrespective of whether they prove this Will or act in its trusts but if any of them die before attaining a vested interest leaving a child or children living at my death then such child or children shall on reaching 25 years of age take and equally if more than one the share which their parent would otherwise have taken’
Husband is still alive but child A has recently died leaving an adult son. I am trying to work out whether A’s share would pass to her estate or under the Will of her late mother - I think I am leaning towards the latter but would appreciate any comments. The son has some issues and she has left her estate into a discretionary trust so it can be managed for him as she was concerned that it would not be in his best interests to inherit a large sum of money.
Presumably the intent was that on H’s death, survived by A’s adult son and B, a half share of the Property Fund would pass to A’s adult son contingent upon him attaining 25 and the other half to B.
“vested” might be interpreted strictly but I would think here the intention was that it meant vested absolutely.
(I’m not sure that was either of your options - if by “will of her late mother” you meant as part of residue).
I can see two interpretations here. It depends on whether the word “survivor” refers to (a) “surviving to the death of the testatrix” (which I would normally had taken it to mean), or (b) “surviving to the death of the last to die of the husband and the testatrix”.
The fact that A or B might not have “[attained] a vested interest” immediately following the testatrix’s would, without more, suggest that there must be the potential for some contingency following testatrix’s death. That contingency would probably be the requirement to survive to the husband’s later death.
However, there may also be a 30 day (or similar) survivorship clause, which itself creates a contingency, but those clauses are typically worded so as to deem a person who survives, but by fewer than the specified number of days/months, not have “survived” at all and therefore, perhaps, such a clause does not help after all.
If one “survived” the testatrix but was not subject to any further “contingency” in order for the interest to vest, it would be meaningless to refer to A or B “attaining a vested” interest. I have, however, seen that expression used when, in fact, what was meant was simply a reference to the person surviving the testator.
I can therefore see scope for arguing that the reference to the “survivor” and the possibility of a beneficiary not “attaining a vested interest” meaning that A and B must survive the husband, but my initial reading of it is that A and B only need to survive the testatrix (and attain a vested interest on surviving her). There is certainly ambiguity, but there may just be bad drafting, so I would look to what the testatrix’s instructions were, or the drafter’s explanation (if there is one).
I read the extract as requiring A (or B) to survive the testatrix’s husband’s death (or marriage etc) if A (or B) is to acquire an interest in the fund under the will. Such an interpretation would be consistent with the reference to “attaining a vested interest” ie were A to die prior to the husband (or pre marriage etc) then A (or B) would not acquire a vested interest. In this event (ie death of A (or B) prior to husband’s death etc) what would have been A’s (or B’s) interest had she survived falls to A’s children under the will albeit contingent on surviving to age 25 (the children living at the date of the testatrix’s death).
It then follows that as A acquired no interest under the will A has nothing to pass under her will.
On the other hand, if the intention was that A (and B) was to acquire a vested interest on the testatrix’s death (and thus would pass on A’s death under her will) the reference to “attaining a vested interest” would seem otiose.