Life Interest in Will

I’m confused by the wording of a will and would appreciate your help/thoughts please.

The testator died several years ago. His will gives his wife the ability to live in the property (of which he’s the sole owner) for the rest of her life. The Trust Period will end on the death of the wife. The will says:

“When the Trust Period ends my Trustees shall hold any property then the subject of this clause for such of my descendants as shall be appointed and in such shares as appointed by my said wife during the Trust Period or by her will or in default of such appointment for… (the four children)”.

The wife now wishes to make a will to exclude one of the children from being a beneficiary of the property on her death.

I cannot see how the life tenant can alter the beneficiaries of the trust either during her lifetime or by her will.

Or do forum members consider that this clause creates discretionary powers for the trustees? Even so, I can’t work out what wording to put in her will to direct the trustees to exercise such a discretionary power.

Karen Shakespeare
Geoffrey Leaver

It looks like the will gives the wife a power of appointment amongst the testator’s descendants; more commonly seen in lifetime trusts perhaps, but still valid in a will trust.

There are precedents in the major will precedent books for clauses exercising such powers.

Diana Smart

Gordons LLP

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The wife has a discretionary power of appointment, exercisable by will. I’m not sure where you are seeing an ambiguity.

“When the Trust Period ends my Trustees shall hold any property then the subject of this clause for such of my descendants as shall be appointed and in such shares as appointed by my said wife…by her will”

Andrew Goodman
Osborne Clarke LLP

From the wording quoted, this looks to be a special power of appointment granted to the widow.

This is a power personal to the widow and cannot be delegated, whether under her will or otherwise.

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals

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