Q&As

Is there an equivalent statutory trust provision to section 33 of the Wills Act 1837, so that if a beneficiary B (who is a child of the deceased settlor A) dies before distribution of the trust assets leaving a child of their own (C), C can automatically benefit from their deceased parent B's 'share' of the trust fund, subject to a contrary intention in the trust documentation? What options would be available to allow C to benefit in this scenario (where the trustees do not have discretionary powers in relation to the discretionary class)?

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Published on LexisPSL on 02/10/2020

The following Private Client Q&A provides comprehensive and up to date legal information covering:

  • Is there an equivalent statutory trust provision to section 33 of the Wills Act 1837, so that if a beneficiary B (who is a child of the deceased settlor A) dies before distribution of the trust assets leaving a child of their own (C), C can automatically benefit from their deceased parent B's 'share' of the trust fund, subject to a contrary intention in the trust documentation? What options would be available to allow C to benefit in this scenario (where the trustees do not have discretionary powers in relation to the discretionary class)?

Is there an equivalent statutory trust provision to section 33 of the Wills Act 1837, so that if a beneficiary B (who is a child of the deceased settlor A) dies before distribution of the trust assets leaving a child of their own (C), C can automatically benefit from their deceased parent B's 'share' of the trust fund, subject to a contrary intention in the trust documentation? What options would be available to allow C to benefit in this scenario (where the trustees do not have discretionary powers in relation to the discretionary class)?

We have assumed that:

  1. the trust described in the question is a trust created during the lifetime of the settlor, who dies before the beneficiaries of the trust have become absolutely entitled to capital

  2. the question refers to a situation where 'the trustees do not have discretionary powers in relation to the discretionary class'. That appears to be a contradiction, so it is assumed that there is no discretionary class of beneficiaries and the terms of the trust create a vested or contingent future right to capital

Section 33 of the Wills Act 1837 (WA 1837) is concerned with a devise or bequest to a child or remoter descendant of the testator, where the intended beneficiary dies before the testator (that is before the Will takes effect), leaving issue who are living

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