Interpretation of Will - partial intestacy or bad drafting?

Trusts Discussion
1

Apologies for the length of this but would really appreciate members’ thoughts.

Deceased estate around £750k, including share of house with other family members shares valued at £280k. No NRB as all used during lifetime. Three children from first marriage. Second wife has survived.

Will prepared by solicitor. No clause numbers. Will provides:-

Gift of Estate to My Wife
If my wife WLC survives me by one calendar month I GIVE her free of tax:-

  1. The Sum of £10,000
  2. Free of any charge thereon my share and interest in equity of and in my residence known as …(hereinafter called ‘‘my Original Property’’) to my trustees to sell the same and to stand possessed of the net proceeds of sale and the net income until sale (hereinafter called ‘‘my Trust Fund’’ as follows
    (a) the pay the income to WLC during her lifetime subject to
    (usual provision for her to occupy during her lifetime paying outgoings and ability to downsize and have trustees join in etc)
    (after her death the Original Trust passes to his three children equally)

the will then goes on to say, again without clause numbering…

DEFAULT GIFT PROVISIONS
If the foregoing gift fails I WILL AND DECLARE AS FOLLOWS:-
I give the residue of my estate (out of which shall be paid my funeral and testamentary expenses and my debts
(i) To my Trustees upon trust and such estate and the property which currently represents it is referred to in this will as ‘‘my Residuary Trust Fund’’
(ii) My Trustees shall hold my Residuary Trust Fund on trust absolutely for such of my children J A S as shall survive me (with usual substitution).

Our concern is that the ‘foregoing gift’ has not failed, which could mean that the residuary trust is not constituted and we therefore have a partial intestacy?

If so, the three children stand to lose around £90k between them.

Wonder what members think about whether it constitues a partial intestancy and that is the end of it or otherwise on the merits of an application for a declaration by the court that the residuary clause is effective to give the residue to the children, or a claim against the solicitors (who don’t have any file or any records - the will was made in 2012). The widow is hostile and refusing to engage or move out of the property (it is being compulsorily purchased in March)

Many thanks.
Michael McCabe
Heath Square Private Client Limited.

2

I assume you act for the executors of the Will.

On a strict interpretation of the Will I would agree that a partial intestacy arises. However looking at the Will as a whole it is hard to believe that was T’s intention. If he didn’t intend on the residuary estate passing to his children on his death why leave a legacy and life interest to his wife instead of leaving the whole estate to her with a gift over to children?

It is unfortunate that the widow is hostile - matters potentially could have been resolved by a D of V. Do the children (in their beneficial capacity) need independent legal advice as to whether they have a claim against the Will drafters in negligence/ whether they first consider a rectification claim under S.20 AJA 1982 and /or any other remedy that may be available to them.

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