Husband dies leaving IPDI for wife. Remaindermen are son and daughter.
Wording is as follows -
When the Occupant (i.e. wife) has ceased to entitled to live in the House my Trustees shall hold it upon trust for my son and daughter in equal shares*
This has not been triggered- wife is still in house.
The Clause goes on and deals with surplus proceeds should wife decide to move house which is permissible.
Any surplus arising from the sale and purchase shall be held by my Trustees upon trust for my son and daughter in equal shares
This hasn’t happened as wife is still in same house.
Son died after husband - what happens to his share once wife dies please?
Did he in your view attain a vested interest at dad’s death so does it fall into his estate? So will pass to his wife by his Will
Or as neither of the circumstances have arisen he has not attained a vested interest so his share will pass via s 33 Wills Act to his only daughter
I assume there are no specific requirements for son and daughter to survive W. You have formed the view that the Will does give W a right to reside which is an IPDI. The use of the word “When” is unfortunate and it might have been better to say “Subject to the right of the Occupant”. But my view would be that son and daughter acquired vested and not contingent interests.
It would follow that had either predeceased H their interest would have been adeemed, in the absence of a contrary provision like a cross accruer or substitutionary clause. s33 will only save the gift if the intended beneficiary dies before the testator (unless the Will has contrary provision). So the son’s interest is a vested remainder and devolves according to his own will or intestacy but subject to W’s IPDI.
The son will have acquired a vested interest on father’s death as remainderman. On mother’s death son’s interest becomes vested in possession and passes under his will.
WA 1837 s33(1)(B) provides " (b) the intended beneficiary dies before the testator, leaving issue;"
This is not the. case here. Hence, s33 inapplicable.
Just goes to show how important it is to be with drafting.
The family are upset that they have to part with a one quarter share of the property following mum’s death to daughter-in-law who they don’t get on with. But nothing can be done about that.
My own precedents only give a vested interest following the death of the survivor in these cases. My explanatory notes to clients explain this and set out the other option too in case that’s what they would prefer. They never do.