I am dealing with an estate where the deceased was given a share in the residue of her late sibling’s estate. Having now seen the Will, I see that the sibling divided his estate into 6 equal shares and gave one share to each of his four siblings absolutely. He gave a further one share each to two of the same siblings and the provisions relating to each of such two shares were
"To my sister S which Share shall be held by her upon trust for the benefit of her daughter D ( the testator’s niece). The said S shall have the same powers in relation to the said one share as are referred to in clause 5 hereof"
However D died before the testator. The question which arises is, does that bequest fail or does S inherit it absolutely so that she receives 2 shares of the estate? The niece for whom the other share was given survived and her mother, who was appointed executor and trustee of the Will, will be holding that share in trust for her.
Somewhere in the back of my mind, I seem to recall dealing with a situation like this many years ago and the parent took the share absolutely on the basis that she was bequeathed the share, albeit that she was given it to hold in trust for another person who had predeceased. I should add that there is no accruer provision in the Will so that if the bequest fails, the one sixth would be shared by the four siblings.
The bequest was to D, so I believe it fails.
I can’t see any way to justify S receiving an outright legacy of the share. It might be different if there was any kind of intent to this effect to be found in the will.
Is it possible that in your prior case, there was a provision to the effect that the child’s estate should benefit (rather than the usual lapse) and the parent then took under the intestacy?
Osborne Clarke LLP
I must confess I agree with Simon but it was just something in the distant past that created some doubt in my mind. Andrew, no there is no indication in the Will of any substitutional provision should D predecease. In relation to the shares given to the parents of both nieces, there is a substitutional provision in favour of their respective children (unnamed). I have now seen an interim distribution account prepared by the solicitors acting in the estate, who are not the solicitors who drew up the Will and surprisingly an interim distribution has been made to “Trustee of D Deceased”. As this is clearly wrong they will need to recoup this. Fortunately there are funds remaining and the parent’s share of these may be sufficient to cover the sum incorrectly distributed once her share under the partial intestacy is added.
The answer may be subject to the actual wording of the gift.
If given to the parent as trustee at the outset then the gift will have
failed and, in the absence of accrual provisions, may well pass as on an
However, if the gift was to the parent absolutely and the trust for D a
supplementary provision (i.e. an engrafted trust) the parent may well be
entitled to the share, applying the rule in Lassance v. Tierney.
Yes Paul it must have been the Lassence case which was in the back of my mind but the wording of the gift which I have put in quotes would not imo be an absolute gift to S with engrafted trusts for D, would you not agree?
Patrick, unfortunately, the quote marks were not visible on the portable device used when responding and I did not appreciate you were quoting the wording of the will. Having now recognised this, I agree Lassence v. Tierney does not apply.
Thanks Paul-a new one for me! It appears to be a “rule” started in Hancock v Watson in 1902, and applied in a number of 19 and early 20 century cases, to avoid a partial intestacy, in circumstances where there was no accruer/provision over for every eventuality, which negates the application of the rule. The Will has to be construed as a whole as usual to ascertain the testator’s intention. Today, one would go for rectification if extrinsic evidence helped, but perhaps it is too late for that.
I must admit, as is often the case where judges are trying to right what they consider to be a wrong (normally arising from sloppy drafting!), some of the cases seem to stretch language a long way, and even on this wording it may work as there are no provisions over, which we would all now include as a matter of course. See a summary of the rule in the only recent case in 1985 Watson v Holland (inspector of taxes)  1All ER 290 at 300, referred to where I looked, but not read by me.