Q&As

In a life interest trust where the life tenant has already disclaimed their life interest, is it possible for the life tenant and remainderman to enter into a deed of variation recording the fact that the life tenant is to take absolutely?

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Produced in partnership with Lynne Counsell of Addington Chambers
Published on: 22 October 2018
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Disclaimer by the life tenant

This Q&A envisages that the life tenant has already validly disclaimed their Life interest. The consequences of a disclaimer are as follows:

  1. •

    the disclaimer must be absolute and the disclaiming Beneficiary cannot retain any benefit. One gift can be disclaimed (eg a legacy) and another retained (eg a share in residue)

  2. •

    the disclaimed benefit falls back into residue and is distributed in accordance with the devolution of the estate

  3. •

    the disclaimer can subsequently be retracted provided no person has altered their position in reliance on the disclaimer

Generally, see Practice Note: Failure of gifts—disclaimer and acceptance.

Deeds of variation

Unlike a disclaimer, a Deed of variation can redirect the beneficial interests under the

Lynne Counsell
Lynne Counsell

Barrister, Addington Chambers

Lynne has been in traditional Chancery practice for some thirty years, specialising in probate matters, construction of wills and trusts and also financial services and drafting.

Lynne was for some years counsel for Tower Hamlets, representing them on landlord and tenant cases and counsel for Bedford Building Society representing it on mortgage cases.

Lynne has written or updated over fifty books, including writing the initial volume of Atkin’s Court Forms “Financial Services” and updating Halsbury’s Laws on Injunctions. Lynne was also co-author of two editions of “Insider Trading” and co-editor and one of the writers of “Chancery Practice and Procedure.”

Articles include “Marketing of Investments” for the Law Society Gazette and “The Doctrine of Mutual Wills” for the Trust Quarterly Review. Lynne won one of the few cases on mutual wills in the last fifty years – Charles v Fraser (2010).

Lynne has drafted the standard unit trust for the government of Nigeria, the rules and related documentation for various building societies and clubs, shareholder agreements, company takeovers compliance documentation for certain banks as well as wills and trusts.

Lynne was awarded the 2017 Corporate international Magazine Global Award – “Investment Contracts Barrister of the Year in England”.

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Jurisdiction(s):
United Kingdom
Related legal acts:
Key definition:
Life interest definition
What does Life interest mean?

An entitlement to trust income or to the use of trust assets, but not the capital. Also called an possession'>interest in possession.

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