I am administering an estate in which the surviving spouse is given a life interest in the family home (owned solely by the deceased). Curiously, on termination of the trust the capital passes in accordance with the residue clause. Guess who’s the residuary beneficiary? Yep - the wife! Not sure why this was done (possibly an error).
I can thus conclude that, because the wife is absolutely and indefeasibly entitled to the whole of the trust fund, we could safely transfer the property to her absolutely and dispense with the trust.
I can’t quite think what deed I should use to effect this…
A deed of partition doesn’t seem correct, because there is no partitioning taking place.
A deed advancing capital to her as the remainderman using the statutory powers?
Some other hybrid deed, referring to the Saunders v Vautier principles?
I suggest you obtain a copy of the testator’s instructions, as it is quite possible the gift over following the life interest should have been to those entitled to residue had the spouse not survived the testator. Unfortunately, such errors are not as infrequent as we might hope.
If the will does not reflect the testator’s intentions, it may be possible to apply for rectification (depending on how long since probate was granted) or for the surviving spouse to execute a deed of variation redirecting the interest in remainder following their death to the intended parties. Such deed might recite the error in the will.
Should the will correctly reflect the testator’s intentions, I understand that a simple assent of the property title would be sufficient as the life interest effectively merges into the residuary gift, so that the surviving spouse takes the property as residuary beneficiary, and not in a multiple capacity.