Poorly drafted Will

Trusts Discussion
1

I have come across a Will that was drafted in 1993. The relevant clause states:

“Upon trust to hold my residuary estate in equal shares for my grandsons XY a minor and YZ a minor until they attain the age of 21 years.”

The rest of the Will just has administrative powers and the deceased died earlier in the year leaving two children. (The grandsons were under 21 in 1993, but are obviously over that age now.) How would members treat this?

a) partial intestacy;
b) XY and YZ as the inheritors (common sense view);
c) look for further evidence;
d) apply for rectification.

My thoughts are that this is (a) above, and I am hoping that the children will agree to a variation. However, if they do not, then presumably (c) and (d) must be explored and we cannot simply interpret as (b)?

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2

The first port of call should be to look for further evidence (and no one could get an order for rectification without it), but without more one’s natural, purposive understanding of this clause, in the context of the will as a whole, would be that it was implicit that once the GCs attained the age of 21, they would receive the estate absolutely - ie your option (b). This is supported by the presumption against intestacy of course (see Partington v Rossiter). The executors would want clarity however, so I think would ask the children as intestacy beneficiaries to confirm they agree with the above interpretation, failing which an application to court for interpretation.

Alexander Learmonth KC
New Square Chambers

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