Will drafting issue - life interest trust


I am dealing with an estate and there is an issue with the will.

The will attempts to create a life interest over the deceased’s home. The beneficiaries are the deceased’s partner ‘A’ and the deceased’s son ‘B’ (a minor and child of a previous relationship). A has children (all over the age of 25) from a previous relationship.

The wording is as follows:

“… Trustees shall hold the Property for my partner A for his life (‘the Trust Period’) and after his death for such of my son B and my Partner A as are living at the date of my death (and if both equally between them) upon attaining the age of 25 years absolutely PROVIDED THAT if either or both of A or B dies before me or during the Trust Period (my emphasis) leaving children of their own living at the date of my death then such children shall take by substitution upon attaining the age of 25…”

There is no express power for the advancement of capital to either A or B or any other mechanism in the will to end the trust before A’s death. B receives the residue of the estate at 25, although the house is the principle asset and there will be little or no residue.

My interpretation is that A, having survived the testator, is the life tenant of the whole trust and remainderman of half of the trust. The wording of the clause seems to be contradictory and I am uncertain as to whether A’s children have an interest in the remainder instead.

The clause seems very odd. I wonder whether the testator intended to give A or his children a remainder interest at all. It looks like a drafting error in the will.

I think that the first step is to request the draftsperson’s file and try and decipher the testator’s intent.

If A has a remainder interest, can he bring an end to the trust, or enter into a deed of variation to vary the terms of the trust over the property?

Any guidance would be appreciated.

Will Mumford
Healys LLP

I agree that the wording of the will seems rather odd, especially the gift I remainder to A which appears to require that he survives his own death in order to benefit.

The first step in such a situation must ne to obtain the will drafter’s file and see what the instructions were. It is only then that one can really understand if the will says what the testator wanted, or if there has been an error in setting out the intentions.

If one starts by trying to get the beneficiaries to agree to some form of scheme, it could result in the estate being distributed in a completely different manner to that intended by the testator and/or the incurring of significant (unrecoverable) legal fees before deciding to approach the drafter and initiating an action for rectification (the costs of which may be borne by their insurer).

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals