I am working from a published precedent which contains the following and I cannot quite get my head around it:
“the Beneficiaries means my wife and:
(1) any issue of mine who are alive at the start of or born during the Trust Period and
(2) anyone who is at any time during the Trust Period the spouse of any such issue or of any issue of mine who are already dead or die before me”
In order to clear up the first point which confused me, I couldn’t understand how someone could be a spouse during the trust period of someone who was dead before the trust period commenced. However the precedent defines “spouse” so as to include a widow, which resolves that point.
What I remain confused by, though, is the limitation, by time, of who is a beneficiary. It is as if the draftsman is trying to close the class. But I cannot see why that is necessary or desirable, when simply writing a list of potential beneficiaries. Clearly no trustee will think of trying to benefit a person who is dead before the commencement of the trust. Similarly if the Trust Period ends then the trust, of necessity, terminates, so there can be no question of the trustee considering for benefit someone born afterwards or who marries afterwards.
In other words, what is the advantage of, or difference between, this wording compared to, say:
“The Beneficiaries means my wife and:
(1) any issue of mine and
(2) the spouse of any issue of mine”
I think the purpose is to avoid the argument that “any issue of mine” should be construed as “any issue of mine who are alive at the date of this deed”. If you were to asked, at the date of the deed, to list who are at that point “the issue of the settlor”, then that could only include those who are alive as at that date. In most cases, the intention would most likely have been to include those born later and, to avoid the contrary construction, definitions often expressly add “whether alive at the date of this deed or born afterwards” (or “…born during the trust period” or similar).
I wonder if anyone has come across a case where this issue of construction has arisen?
If “my wife” is not defined I’d be inclined to do so. Practical Law’s Master Will does so by naming her. Sophists may go on about revocation by a subsequent marriage but a precedent should offer a choice to so define in my view. James Kessler QC deals with this by calling her “my Spouse” and defining “Spouse” to include a surviving spouse, as does Andrew Jones’ precedent.
Paul @pddavidoff, that’s interesting: you’re interpreting it as an extension to what it might otherwise be thought to mean, when I was interpreting it as attempting to impose a restriction on what it might otherwise be thought to mean.
I can see how it makes some sense looked at that way, although only if the restricted interpretation of “issue” or “descendants” (or whatever) to “…living at the date hereof” is tenable.