Will interpretation—when are beneficiaries ascertained?
Will interpretation—when are beneficiaries ascertained?

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

  • Will interpretation—when are beneficiaries ascertained?
  • Issues of vesting
  • Class gifts
  • Rule 1
  • Date of distribution
  • Rule 2
  • Gifts subject to the rules
  • Survivorship
  • Alternative gifts

Will interpretation—when are beneficiaries ascertained?

While it is obvious that the beneficiary of a gift has to be ascertained, it is also important to ascertain when that gift vests in order to include or dismiss beneficiaries. In order to do this the principle of ‘early vesting’ is often invoked. This principle determines that the gift vests at the date of the testator's death or at the earliest moment after that date which is possible in the context, whether it is of real or personal estate. Some care has to be taken with this rule of convenience as, patently, a contingent gift should not be misconstrued to make it vest earlier than intended by the testator.

Issues of vesting

A gift that has no vesting time annexed to it will always vest at the date of the testator’s death unless this would create a conflict with other provisions in the Will or it can be shown that the testator intended the gift to operate at a later date. In general the presumption will be that the testator intended the gift to vest rather than hang in limbo. This makes obvious sense in the case of a contingent remainder where the rule had been that the contingent remainder failed if the contingency had not been fulfilled when the previous interest determined. It is now an established rule of construction that in

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