Per stirpes clause

Trusts Discussion
1

I would be grateful for a little help with the interpretation of a Will that I am dealing with.

I am instructed to termate a trust which has come to an end on the death of X in 2022. For the purposes of this scenario, I will refer to the settlor as Z. Z died in 2000.

Z’s Will states that, “after the death of my said son X my trustees shall stand possessed of my residuary estate … in trust for the said A, B, C, D, E, F, G, H, I, J, K, L and M in equal shares or to the survivor absolutely PROVIDED ALWAYS that in the event of any one or more of them … having predeceased me or having survived me shall die in the lifetime of my said son leaving a child or children him or her surviving then such child or children shall take per stirpes and if more than one in equal shares the share of my residuary estate which his her or their parent would have taken has such parent survived and attained a vested interest”.

The situation I have is that H died in 1992. H left three children, two of whom are still living (Child A & Child B) and one of whom died in 2016 (Child C) (i.e. after Z but before X).

My question is:

(a) Does Child C’s estate receive1/3 of H’s share, with Child A and Child B taking 1/3 each; or
(b) Do Child A and Child B take 1/2 of H’s share each, with Child C’s estate receiving nothing?

I would be grateful for any thoughts and assistance with this one.

Joe Pegler
Chattertons Solicitors

2

My reading of the terms of the will, as stated, is that if C left children, they will take his share. If he left no children, then his share will accrue to those beneficiaries who survive both Z and X.

I question, though is when Z refers to “children” he means children or issue? There is an unfortunate history of the references to “children” being intended to include all issue. The stirpital reference might be taken to suggest issue rather than merely children.

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals

3

C’s estate receives 1/3rd of H’s share.

Malcolm Finney

4

Thanks both for your swift responses.

Paul, as I understand it Child C left no children of his own, so I think we can avoid worrying about that question for now on his branch.

Are you suggesting that, if Child A and Child B also have any issue, they could ask take benefit from the trust?

Joe

5

I believe that the “per stirpes” reference would be irrelevant if the share due to a deceased beneficiary only cascaded down one generation, which is what causes me to wonder if the reference to “children” is used in the wider sense – to mean “issue”.

Having re-read the original post, inspired by Malcolm’s post, I wonder if the way forward may depend upon whether H’s children - A, B, and C - are also the A, B, and C referred to in the extract from the will.

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals

6

Hi Paul

The children (A, B and C) are not the same as A, B and C in the Will.

Kind regards

Joe

7

I had assumed that and hence my post still stands.

Malcolm Finney