Hello, I have been provided with a Will containing the following clause:-
“To pay the income from one half of my net residuary estate to my daughter during her lifetime and after her death this share to be added to the share in sub-clause 2 above (ie. to the son absolutely, who is alive). IF this gift fails entirely for any reason then this share shall pass to my brother…”
The issue is the daughter has disclaimed the gift. Does this mean it goes absolutely to the son, which I believe is the intention. Or. can it be argued it has failed and therefore passes to the brother??
I’m thinking to the son, since the effect of a disclamer is to treat the beneficiary as if they have predeceased, but would welcome confirmation!!
I would say the life interest part has failed, and so passes to the son, as the ‘gift’ hasn’t failed ‘entirely’. Conversely, the life tenant hasn’t died, but as there is no provision for that scenario, I would say the intention of the testator would be that the son receives.
The instruction file would (possibly) make it clearer.
The son has an absolute reversionary interest and I don’t see that this can be taken away from him without his consent. Accordingly, the gift hasn’t failed completely and the son must inherit under sub-clause 2.
There remains an issue that the son’s share doesn’t strictly vest until “after [daughter’s] death” and so a question remains over the intermediate income between the disclaimer and the daughter’s death. I think that is (mostly) answered by s33A(2) of the Wills Act 1837 which says (as you rightly point out):
(2) The person is, unless a contrary intention appears by the will, to be treated for the purposes of this Act as having died immediately before the testator.”
I would agree that the testator’s clear intention must be for his children to benefit in priority to his brother, who only takes if both children have predeceased, so the best interpretation must be that there is no contrary intention and the son takes immediately on the daughter’s disclaimer.