Residuary Estate 'equally'

Trusts Discussion
1

I am reviewing a clause drafted in a Will which reads:

'6.3. My Trustees shall hold whatever remains, including any income earned after my death (“my Residuary Estate”) on the trusts set out below:

6.3.1. 100% to be shared EQUALLY between my children and grandchildren who are living at the date of my death. If any of them die before me or their gift should fail, their share shall pass equally to their own children, but if any such child is unable to benefit, their gift shall pass to their own children.

6.4. If any of the above shares fail then such failed share will be distributed to the other beneficiaries of that clause proportionately according to their shares.’

Question 1. Clause 6.3.1 - Is it correct that if any of the children or grandchildren die before the Testator with children of their own their share will be taken by their own children etc.? Effectively, therefore, a grandchild will get more than an equal share if their parent dies before T?

Question 2. Clause 6.4. Does this clause cover the situation where a child of T dies before T with no children of their own - it does back into the pot and divided equally?

Question 3. If clause 6.3.1 only included the words: ‘100% to be shared EQUALLY between my children and grandchildren who are living at the date of my death.’ AND clause 6.4 was also included as the default clause. I am assuming the residuary estate will be divided equally between the children and grandchildren (and will not pass to their issue)?

Thank you.

2

My understanding is:

Question 1. Clause 6.3.1 - Is it correct that if any of the children or grandchildren die before the Testator with children of their own their share will be taken by their own children etc.? Effectively, therefore, a grandchild will get more than an equal share if their parent dies before T?

YES.
YES.

Question 2. Clause 6.4. Does this clause cover the situation where a child of T dies before T with no children of their own - it does back into the pot and divided equally?

*THIS SITUATION IS NOT COVERED UNDER 6.3.1. *
CLAUSE 6.4 SEEMS TO PROVIDE THAT THERE IS THEN AN EQUAL DISTRIBUTION AMONGST THOSE LIVING IE IT GOES BACK INTO THE POT.

Question 3. If clause 6.3.1 only included the words: ‘100% to be shared EQUALLY between my children and grandchildren who are living at the date of my death.’ AND clause 6.4 was also included as the default clause. I am assuming the residuary estate will be divided equally between the children and grandchildren (and will not pass to their issue)?

AGREED

Malcolm Finney