I am looking at an old Will from 1979 which included a brief right of occupation for A who has recently died. The Will states that sale monies should be distributed in accordance with the residue clause which states:
" the residue of my estate shall be divided between my following children in equal shares A, B, C, D, E and F provided that if any such child or children of mine shall die leaving a child or children them surviving then such grandchild or grandchildren shall take such part of my deceased child’s share and if more than one in equal shares provided that no such grandchild shall take during the life of his or her parent" (grammar produced here identical to Will)
As you would expect most of the children have died in the intervening period since the death of the Testator in 1984. I am just trying to get straight in my head whether their reversionary interests were vested and for those deceased, pass via their own estates or contingent and pass to their children. I am used to seeing after the reference to “children of mine shall die BEFORE ME” to indicate vested and “children of mine shall die BEFORE ME OR BEFORE ATTAINING A VESTED INTEREST” to indicate contingent. I had initially considered it a reversionary vested interest, but you can stare at these things for too long!
This is entirely standard wording and still very much in use today. I think others will agree, though of course I am a notorious analogue dinosaur. Nonetheless I applaud and employ modern English drafting Kessler-style. However, it is sometimes hard to improve on tried and tested formulae of words. In my view the quoted extract is neither archaic nor rank legalese. Nor is it unreasonable to stick with wording that has been clarified by case law, hallowed by Chancery practice.
This is a vested remainder with a substitutionary gift over if the named beneficiary dies before the testator. The gift over here is not contingent e.g. on attaining majority. So if any named beneficiary dies childless before the testator his share fails altogether and accrues equally to the other children’s shares. If he does not survive but has (“leaves”) a child or children alive at the testator’s death his share goes to them instead. If there is no final gift over there is an outside possibility that no one will take and an intestacy will result. Here the testator has probably taken the view that this is highly unlikely. A benefit is that entitlement is fixed once for all at the testator’s death. The downside is that as the gift over is not contingent a grandchild who takes may later die intestate if a minor at their own death, absent a privileged will: the accruer provision,“if more than one in equal shares”, applies only as at the testator’s death not at the later death of a grandchild. The phrase “or en ventre sa mere” is implied and precedents which still expressly state it are correct but a bit Rees-Mogg.
This is more or less typical of a default clause in a Will and is designed to defeat a potential intestacy, including bona vacantia for the State. Without an ultimate gift over, e.g. to charity or to the descendants of the testator’s grandparents, there is still a risk of that. In the first case the law will always find a charity substitute if a named one no longer exists. In the second case it is important in principle to ensure that if a member of the wider class of descendants have predeceased the testator their share does not lapse but devolves in accordance with their will or intestacy. If a grandchild survives here and takes initially under the gift over that will indeed be the outcome on his later death. The testator seems to have relied on his having 6 children, and possibly some living grandchildren even at the time of making his will, so that a fancy long stop was unnecessary. Like Mr Kessler I prefer “descendants” to “issue” in drafting the wider class, as somewhat more user-friendly these days.