Residuary clause interpretation

Trusts Discussion
1

I would be grateful to receive members’ comments on their interpretation of this clause in a Will:-

"3…as to one half to my sister…and as to the other half to my daughter…absolutely.

  1. In the event of the failure or determination of the trusts hereinbefore declared concerning my residuary estate my Trustee shall hold the same UPON TRUST for [charity] absolutely"

The sister predeceased the deceased. Would the daughter inherit 100% of residue or would the charity inherit 50%? The deceased’s intentions are unknown (no notes are held as the Will was signed 20 years ago). As the word “trusts” is plural, we believe it can be inferred that the deceased’s intention were for the charity to only inherit if both the sister and daughter predeceased the deceased but the Will is not clear. What are other members’ views and does anyone know of an authority on this point?

Thank you.

2

There is apparently no accruer clause so the sister’s gift fails and the charity takes. If the daughter had predeceased the same would have applied as clause 4 seems to be an intention contrary to s33 WA 1837. Without sight of the document it is not possible to know exactly what are the “trusts” mentioned in clause 4. If they emanate from a general direction to hold the resuduary estate on trust I would say they did not have the effect you suggest; on the contrary they would thereby refer to the two gifts in clause 3 and the plural is used because there are two trusts, one for each gift. There are two trusts but only one “failure or determination”.

Jack Harper

3

Thank you, Jack, that is most helpful.

James