Q&As

The widow of the testator was left a life interest in a property and 25% of income from a trust established by the Will in the following terms: ‘If I shall still own the property...at the date of my death I direct that my Executors...’. The property was subsequently sold, and an alternative matrimonial home purchased, but the Will clause was not amended. The new property is not referred to in the Will and has fallen into residue which makes no provision for the widow. Other than a deed of variation, is any other option available to remedy this situation?

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Produced in partnership with Emma Holland of Stewarts Law
Published on: 09 July 2020
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The disappointed widow may wish to consider the availability of various remedies.

Rectification

If it is considered that the testator intended (at the point the Will was executed) to make these gifts regardless of whether the specified property had been sold and replaced, a claim could be made for rectification under section 20 of the Administration of Justice Act 1982 (AJA 1982). This provides:

‘…(1) If a court is satisfied that a will is so expressed that it fails

Emma Holland
Emma Holland

Emma assists beneficiaries, trustees, and other fiduciaries with trust disputes both onshore and in numerous offshore jurisdictions. Emma also specialises in probate disputes, and disputes overseen by the Court of Protection. Emma has been recognised as a Next Generation Lawyer (Legal 500 2018) and as a Top 35 Under 35 private client practitioner (eprivateclient 2016). Notable examples of work include advising (often alongside foreign law counsel): - discretionary beneficiaries of Bermudian trusts holding a construction business on family corporate governance, applications for approval of restructuring proposals and contentious tax. A Public Trustee v Cooper hearing took place in 2017 (Re X,Y,Z Trusts [2017] Sc (Bda) III Civ). - a beneficiary opposed to a trustee's proposal to sell a key trust asset, involving a jurisdiction challenge in Jersey (Representation of G Trustees Limited [2017] JRC 162A) and a trustee removal application in Bermuda (In the Matter of the E Trust [2017] SC (Bda) 103 Civ). - beneficiaries regarding the removal of a protector (In the matter of the K Trust, Guernsey Judgment 31/2015). - trustees in defending allegations of breach of trust through material non-disclosure (AB Jnr & Or v MB & Ors [2013] (1) CILR 1). - on jurisdiction relating to a succession dispute focusing on the friction between English testamentary freedom and Italian forced heirship rules (Durham v Lambton & Ors [2013] EWhC 3566 (Ch)). - on a contested health and welfare, and property and affairs, deputyship application, including the Local Authority's application relating to deprivation of liberty.

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Jurisdiction(s):
United Kingdom
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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