I have been asked to look at Will for a client who is dealing with her father’s probate. Mother has already pre-deceased.
The gist of it is as follows:
Clause 4 - If my wife and daughter survive me for 28 days, I give to my daughter 5% of my gross estate.
Clause 5 - I Give 10% of my gross estate to my trustees to pay the income to my wife during her life and after her death, to divide the capital into tenths and to pay…[10 charities]
Clause 6 - My trustees shall hold the remainder of my estate …
(a) to my wife if she survives me by 28 days
(b) if my wife does not survive me for 28 days, then to pay the residue to my daughter.
I have simplified it a little but that is the gist of it.
Can I ask members how they would interpret this bearing in mind the mother (ie, wife) died some time ago? ie, are the charities entitled to the 10% or does 100% of the residue pass to the daughter outright (which is how I interpret it)?
Clause 4 seems a little odd. You ought post the actual text of the clause. The wording is critical to its interpretation. But on the assumption it says no more than you have provided ie that it specifies only a 5% to gift to daughter and provides for nothing to spouse, then it seems daughter’s gift is conditional on both her and mother surviving testator by 28 days. So would fail. Clause 5. Just because the wife didn’t survive the testator doesn’t invalidate the gift to the trustees. Wife’s life interest doesn’t get going, but the remaindermen (the charities) will still be entitled to their 10%
That being so, clause 4 seems irrelevant. The scenarios are:
Clause 4 effects gift to daughter
Clause 4 daughter 5%
Clause 5 charities 10%.
Clause 6 daughter has balance ie 85%.
Daughter gets 90% in total.
Clause 4 ineffective to gift to daughter
Clause 4 daughter 0%
Clause 5 charities 10%.
Clause 6 daughter has balance ie 90%.
Daughter gets 90% in total.
The charities get 10% come what may. The daughter gets 90% either by way of Clause 6 or she gets 5% via clause 4 and 85% from clause 6.
I agree with Marks’ interpretation. Clause 4 also seemed to me to be a bit strange ie daughter’s 5% is premised not just on her own survival but also on her mother surviving (the 28 days).
Clause 5 provides the charities with 10% of gross estate on testator’s death as wife (the life tenant) has not survived her husband .
Thank you all. Makes better sense now. Yes, Clause 4 is strange and is how i have put it, ie conditional on mother and daughter surviving, but as Mark says, it is irrelevant to the overall interpretation.