Vesting of remainder interest

I am advising the trustees of a life interest trust, created by Will. The life tenant is still alive, but one of the remainder beneficiaries has just died. The terms of the trust are:

“… to pay the income thereof to my said son A for life if and when he attains the age of Twenty one years and from and after the decease of my said son I DIRECT that my said Trustees shall stand possessed of the the said properties IN TRUST for the child or children of A - and if more than one in equal shares absolutely.”

A is over 21 and he had two children, one of whom has died, before A, leaving no children of his own. Neither of A’s children were born at the time the testator died.

The Will does not state if A’s children had to survive the testator or A. I am therefore unsure if either:

a) The deceased son’s share vested on the death of the testator, in which case 50% of the remainder interest is an asset of his estate. I am mindful that the deceased son was not born when the testator died; or

b) The deceased son’s share would only have vested had he survived A, in which case the entire remainder interest passes to his brother.

It may be worth obatining Counsel’s Opinion, but I would be grateful to know any thoughts.

Anna Howat
Chattertons Solicitors

A’s life interest is contingent. On attaining age 21 his interest vests in possession.

A’s children acquire their reversionary interests (albeit not in possession) from the date of their birth not the date the testator died (as they hadn’t been born at that time).
On this basis, on a child’s death that child’s reversionary interest forms part of their estate.

Malcolm Finney

You’ll want to closely analyse the will to satisfy yourself that there is no express/implied condition that the remainderman should survive the life tenant (or that the remainderman’s interest should divest if he fails to do so). I was involved in a recent case raising this issue which was resolved with an application under s 48 Administration of Justice Act 1985 to rely on counsel’s opinion. The application succeeded and the executors were authorised to pay out the remainderman’s share to his personal representatives.