The surviving spouse (W) has just died and it seems to me that there are two possible ways to interpret the relevant part of H’s Will with regard to what happens to her IPDI Life Interest. The Will says:
5.2.1 Life Interest to W
If W survives me, the trustees shall pay the income of the Trust Fund to her during her life. The interest in possession created by this clause is an immediate post death interest within section 49A Inheritance Act 1984.
5.2.2 Discretionary Trusts
Subject to that:-
5.2.2.1 My Trustees may accumulate the whole or part of the income of the Trust Fund during the Accumulation Period. That income shall be added to the Trust Fund.
5.2.2.2 My Trustees shall pay or apply the remainder of the income of the Trust Fund to or for the benefit of any of the Beneficiaries, as my Trustees think fit, during the Trust Period.
5.3 Longstop Beneficiary
Subject to that, the Trust Fund shall be held on trust for [Child 1 and Child2] in equal shares absolutely.
Is it the case that as W has now died, the discretionary Trust now kicks in? Or is it the case that the Discretionary Trust would only have arisen if W had pre-deceased H, and therefore the assets pass directly to Child 1 and Child 2?
If it is relevant, the Beneficiaries are named as W, the “Other Woman”, Child 1(and descendants) and Child 2.(and their descendants)