I was wondering if anyone could help me with this clause
My Trustees shall hold the Trust Fund for such of my children ____________and _____________as shall survive me and if both in equal shares absolutely PROVIDED THAT if either or both of them fails to survive me leaving a child or children living at my death then such child or children shall take absolutely and if more than one then in equal shares per stirpes so much of my Trust Fund which their parent would otherwise have taken
My question is in this instance would great-grandchildren inherit their parent’s share if one of the grandchildren had died before the deceased?
I understand that it is more common place to use the word Issue or Decedents rather than children and just want to ensure my understanding is right before advising my client
Thanks so much in advance. I am new on here but really appreciate any help.
On its face, no, it would pass that share to the other child’s line. But i wonder if s.33(1) WA 1837 might apply? (if not disapplied elsewhere). I suspect not given the wording of the will seems quite clear but I have never looked at the point.
Thanks Andrew. I was under the impression that it would pass down the branch of the deceased child, so to his grandchild or grandchildren and then great- grandchild and so on. I will do some more research. Wills Act was not mentioned in the Will.
Sorry to be a bit dim. May I clarify the question. Have the events already occurred and you are administering the estate of the testator (or advising the executors) or are you currently drafting the testator’s Will and the testator seeks clarification of the effect of the substitution clause?
We are reviewing some old Wills for some clients and just want to ensure that they accurately reflect their wishes. My understanding initially would have been that a great-grandchild would take their parent’s share if one of the grandchildren had died as per Stirpes means it goes down by branch but think the fact it refers to children and not issue confuses things
It is very easy to get these substitution clauses wrong. I think the rock solid solution to this problem is:
“(1) My trustees shall hold my residuary estate upon trust for my [wife/husband] if [she/he] shall survive me.
(2) If my [wife/husband] fails to survive me or if the above trust shall fail for any other reason my trustees shall hold my residuary estate upon trust for such of my children [name] [name] and [name] as shall survive me and if more than one in equal shares Provided that if any of my children shall predecease me then any children or remoter descendants of him or her living at my death [or born not more than [18] years after my death who in either case shall attain the age of 18 years or shall be living but under that age at the expiry of [18] years from my death] shall take and if more than one equally through all degrees according to their stocks the share of my residuary estate which such child of mine would have taken if he or she had survived me and so that no child or remoter descendant of a child of mine shall take whose parent or remoter ancestor attains a vested interest and section 33 of the Wills Act 1837 shall not apply to the above trusts.”
Please see Williams on Wills 11th edition Form C3.1. I am pretty sure that credit for this must go to Susannah Meadway of counsel at Ten Old Square.
At one stage this sort of clause was considered to be of academic interest only. I currently have three families where each has five living generations: testator, child, grandchild, great grandchild and great great grandchild. In a previous life I dealt with road accidents and was aware of a few where the testator’s child, grandchild and great grandchild were all killed in the same road accident. It is no longer an academic point but a feature of the real world.