Undefined life tenant of a life interest trust

Husband has died, with his will leaving his residential property in a life interest trust for “The life tenant” to live in for her lifetime. However, the will does not define who the life tenant is. The remaindermen are the deceased’s three children, with substitution to grandchildren. Residue is left outright to the widow.

Husband is survived by his wife and all three children.

The matter file shows the intention for husband and wife to execute mirror wills with the property held in a life interest trust for the survivor as life tenant, with the children as remaindermen.

Am I right that the life interest trust fails, and therefore forms part of the residuary estate?

What is the most appropriate way of rectifying this so that the widow has a life interest in the property? Deed of variation signed by widow? (and all three children?)

christopher james
davies and partners

Looks a classic case of “clerical error” which could be remedied by an
application for rectification if the instructions for the wills are as
clear as stated.

However, the beneficiaries may be expected to mitigate any loss and,
provided there are no adverse consequences (e.g. tax or deprivation),
the use of a deed of variation may be the preferred option.

Paul Saunders