I am dealing with a case where I would be grateful for the assistance of forum members.
In a Will made in 2023, husband (H) appointed his wife (W) and her two children to be the executors and trustees of H’s Will.
H died in 2024.
A relatively standard right of occupation trust was created in the Will for W. The trust period ends if W dies, fails to meet her obligations, or ceases to occupy the property as her main residence.
Subject to the right of occupation clauses, the Will states that, “my Trustees must hold the Property Fund on the trusts that apply in Clause 6.4”.
Clause 6.4 says, “SUBJECT TO clause 6.3 above, my Trustees must hold the Trust Fund on trust to divide it into Three equal shares. My Trustees must hold one share on trust for each of the following absolutely…”.
Clause 6.3 says, “MY TRUSTEES must hold the Trust Fund on trust for my wife … absolutely if [she] is living at my death”.
It appears to me that, whilst the remainder beneficiaries are clearly supposed to be those in clause 6.4, this clause is actually subject to clause 6.3 which gives everything to W if she survives H.
Whilst the intention wasn’t to give W an absolute interest, the wording appears problematic.
Are forum members of the opinion that this right to occupy merges with the remainder interest and W takes absolutely, or am I overthinking this and are forum members of the opinion that the intention is obvious and the intended remainder beneficiaries will receive their shares and the trust should be administered accordingly?
There are apparently 2 important definitions: the Trust Fund and the Property Fund. How do they interact? Broadly I suggest that unless the latter is clearly carved out of the former there is no reason why it should devolve separately from the Trust Fund.
However I think this separation was indeed intended and the reference in the RoO clause should have been to clause 6.4 omitting the words”Subject to clause 6.3 above”. There seems to me ample justification for ignoring those words anyway, as they refer to circumstances which contradict the very raison d’etre of a separate remainder to the RoO.
The RoO and clause 6.3 can only logically operate together if the remainders are different. If the wife survives 6.3 surely comes into operation and therefore, since the RoO applies only if she survives, it makes no sense if she is also entitled to the remainder to that rather than the children under clause 6.4. To make sense of 6.3 and the RoO co-existing logically, the remainder to the latter must devolve separately.
Though the death of W is only one contingency for termination of the RoO it would be absurd for the remainder then to devolve on W. So logically the Property Fund devolves on the children under 6.4 and the “Subject to 6.3” phrase is aimed only the main distinction: that clause 6.3 operates if W survives and 6.4 if she predeceases.
Without sight of the entire Will it is hard to be sure of this conclusion.
I suspect that Paul is right: a simple error has occurred and the alternative interpretations ideally would be resolved by rectification if an enquiry into the facts support it. But this is expensive and it may be that those prospectively entitled under each clause can reach a compromise, perhaps by committing to accept the opinion of a single adviser, such as Counsel.