A share of residue is bequeathed to such of A B C and D “as shall survive me in equal shares I DIRECT that my trustees shall hold the share of C and D upon trust until such time as they attain the age of 25.”
All survived the deceased and C & D are 23 and 20 respectively.
Are the trustees bound by the direction not withstanding that C and D have a vested share having survived
The direction does not appear to impose any condition upon the gifts, merely purporting to delay payment.
On that basis, C and D only need to have survived the testator and therefore appear to be immediately entitled to their shares.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
This question appears to crop up on a regular basis but I’m not convinced that all respondents are in agreement.
We never on this forum, understandably, have sight of the complete will to put a particular query in context which as I understand matters is critical.
Having said this I have in the past cited Phipps v Ackers (1820) (without any response as to its applicability our otherwise) in the past and it seems to me that this would apply to the current query; in which case, the requirement to attain age 25 is a condition subsequent (not precedent) and thus the gift vests immediately albeit subject to divestment on death before age 25.
I wait to be shot down in flames! Andrew time to have a shot !!
Malcolm Finney
The essential question is whether the direction defers vesting, or merely refers to the time of possession.
Do the words: I DIRECT that my trustees shall hold the share of C and D upon trust until such time as they attain the age of 25 import a condition or a contingency?
If the words were “if” or “when” they attain the age of 25 were used, there would clearly be a contingency. In the absence of such words (or similar words), the gift is vested. However, I understand that, for the rule in Phipps v. Ackers to apply, there is required to be an express gift over (Re Mallinson’s Trusts, 1974?). In the absence of any express gift over on C and/or D failing to attain age 25, I believe the reference to age 25 merely purports to defer the date of payment and is, therefore, ineffective.
I agree with Malcolm that the question cannot be answered with full confidence without sight of the complete trust instrument (some contain the most relevant clauses tucked away somewhere within the administrative provisions!).
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
I accept Paul’s point that the case I referred to does assume a gift over (at least on my reading of the case).
In the absence of any such gift over is it not the case that " … shall hold the share of C and D upon trust until such time as they attain the age of 25” may be interpreted as a contingent gift and thus pima facie vests only on attaining age 25? The word "contingent’ being equivalent to a “condition precedent”.
Malcolm Finney
The following is an extract from Williams Mortimer & Sunnocks (20th Edition) @ 77-03.
Where a testator gives a legatee an absolute vested interest in a defined fund, so that, according to the ordinary rule, he will be entitled to receive it on attaining 18, but payment is postponed to a subsequent period, e.g. until the legatee attains the age of 25 years, the court will nevertheless order payment on his attaining 18 years. At that age he has the power of charging or selling, or assigning it, and the court will not subject him to the disadvantage of raising money by these means when the thing is absolutely his own.
I am inclined to think this supports the wording in question being an unsuccessful attempt to defer payment, so that C and D can require payment of their entitlement now, rather than waiting until they are 25.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals