Contents of Wills—rules of apportionment

The following Wills & Probate practice 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)

Contents of Wills—rules of apportionment

The rules of apportionment should be considered at the moment of drafting the Will. Whenever a Will creates a trust, some rules of apportionment may be applied or excluded unless they have been dealt with expressly in the wording of the Will.

Essentially, the purpose of the apportionment rules 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 was that a testator, had they thought about it, would probably have wanted the trustees to maintain that balance. Therefore, equity intervened to presume that intention on behalf of the testator. As the principle of apportionment was always to be presumed, there was no necessity to seek any evidence of intention to include the rule (although evidence would be needed to dispel the presumption).

Trusts (Capital and Income) Act 2013

The relevance of the rules had been under scrutiny after the passing of the Trustee Act 2000 (TrA 2000). Comments made at that time resulted in the Law Commission being instructed to consider the law governing the treatment of capital and income in trusts. The Commission's conclusions were that the rules should be abolished.

The Trusts (Capital and

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