Contents of Wills—rules of apportionment
Contents of Wills—rules of apportionment

The following Wills & Probate guidance note provides comprehensive and up to date legal information covering:

  • Contents of Wills—rules of apportionment
  • Trusts (Capital and Income) Act 2013
  • The rule in Howe v Lord Dartmouth
  • The rule in Allhusen v Whittell
  • The rule in Re Earl of Chesterfield's Trusts
  • The rule in Re Atkinson
  • The rule in the Apportionment Act 1870 (AA 1870)

Although it is more likely that the practitioner will be concerned with the operation of the rules of apportionment after the death of the testator, they have to be considered at the moment of drafting the Will. Whenever a Will creates a trust for persons in succession, the rules of apportionment should be applied unless they have been excluded by the Will.

While it is true to say that most Wills do exclude their operation, it is necessary for the rules to be understood before a decision as to their exclusion or not can be made. Essentially, their purpose is to strike a balance between those interested in the capital of the trust (the remaindermen) and those interested in the income derived from that capital (the life tenant). These rules have been set out in cases and by statute.

In the main, the reasoning behind the rules is that a testator, should they have put their mind to it, would probably have wanted the trustees to maintain that balance. Therefore, equity intervenes to presume that intention on behalf of the testator. Because the principle of apportionment will always be presumed, there is no necessity to seek any evidence of intention to include the rule. However, evidence must be sought to dispel the presumption.

Trusts (Capital and Income) Act 2013

The relevance of