T made a will giving her surviving husband a life interest in her share of the house.
Clause 10 ‘on the death of my husband such dwellinghouse and any property representing it shall be paid to my children A,B,C and D in equal shares and proportions absolutely’.
D survived T and has died. Spouse is still alive. Will does not provide for house proceeds to pass into residue on Husband’s death.
Residuary clause provides for children of deceased beneficiary to receive in the usual fashion.
Would appreciate members’ views on whether the terms of the property trust mean that in due course the property will pass to the children who have survived the spouse or whether it is to be treated the same as the residue and as such a share of the house would pass to D’s children.
It seems to me that provided that all of the named children have survived T, then they, or their estates will be entitled to a share of the property on D’s death.
If D failed to survive T, leaving issue of their own, the question is whether the wording of the residuary clause is such that it evidences a contrary intention for the purposes of s.33 Wills Act 1837 so as to negate the application of that section to the trust fund. Whilst my inclination is that s.33 would apply to save D’s share for his issue as the interest in remainder would appear to vest immediately on the death of T, depending on the value it might be appropriate to secure counsel’s confirmation. Alternatively, if all in agreement the other siblings might assign to the children of D such of their interest in remainder that exceeds a quarter share of the trust fund.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
As D survived T, it would seem to me that the share of the property on the death of the life tenant passes to D’s estate as D had a reversionary interest therein.