Gift of Property or Future Proceeds of Sale

Trusts Discussion
1

I have come across a Will with the following clause:

“I GIVE to my Spouse absolutely my beneficial share in (or in the future proceeds of sale of) such property as I may own as my principal residence at the date of my death (“my Property”) provided that my spouse shall survive me but if my spouse shall fail to survive me I give my Property to such of my children absolutely”

The spouse predeceased the testator and the property was sold 1 year prior to the testator’s death. The sale proceeds were put into a separate bank account and used to pay for the testator’s care.

I am slightly confused as to how this works in reality and what this definition attaches to. Do the children inherit what is left of the sale proceeds in the bank account? Or do they inherit the full amount of the net proceeds of sale on completion and the care fees are treated as a debt of the estate?

2

If the children are also residuary beneficiaries does it matter?

3

This is the issue - usually it wouldn’t matter but in this case the residuary beneficiaries are the grandchildren

4

The definition of the asset gifted is “my beneficial share in (or in the future proceeds of sale of) such property as I may own as my principal residence at the date of my death” (my italics). From what you say the deceased did not own a principal residence at the date of death so does the gift not fail?

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5

This was my first thought, that the gift failed and the children actually inherit nothing. The reference to “future proceeds of sale” would therefore relate to a property that was owned as the principal residence at the date of death but subsequently sold during the administration period?

6

That would be my reading.

7

This seems a little less clear to me and I think i would be looking at the will file to see what the deceased’s intention was.
Is the inclusion of the future proceeds there to protect the legacy should the property be sold in the lifetime? Ie - future proceeds being those after the will is executed not after the date of death?
Why else would it be included because if the property was held at the date of death the legatees would be entitled to the proceeds of sale anyway.

8

I agree that the wording is strange and that the drafting may not reflect the testator’s intentions.

9

I don’t agree that the wording is “strange” - in the sense that I feel certain one of the widely used precedent books (I think it’s BWPAS) uses “(or in the future proceeds of sale of)” as part of its standard wording of such clauses. It follows that I think @rachel_timms’ interpretation in her third post in this thread, which @JC55 agreed with, is the correct one. I don’t share @nigelscase’s concern because it seems me me that “as I may own … at the date of my death” puts the point beyond question.

10

Thanks Andrew. What I consider “strange” is the phrase “future proceeds of sale” since as the property is the subject of a specific legacy then that automatically includes the proceeds of sale, as Nigel has pointed out.

11

Thanks. Yes, I get that. But my point is that if BWPAS uses that wording in its precedent clauses for gifts of property then it is not “strange” for that wording to end up in someone’s will. Nor do I think we can read too much into it: all wills with gifts of property derived from BWPAS precedents will contain those words.

12

I suppose the question then is why?

13

It seems that the gift has adeemed.

You would wonder if the words “ or in the future proceeds of sale of” was an attempt by the will drafter to avoid ademption. Depending on the amount of the net proceeds of sale, you may want to ask a Court to construe the Will.

I have started adding a clause in wills that states “if I do not own the Property at the date of my death, I give James £x, in cash, instead”