11 January 2019

Losing counsel series: Macintyre v Oliver

Paul Hewitt
Partner | UK

When does a legacy vest? And when can the court save a conditional gift by construing the condition attached to it?

In Macintyre v Oliver and Others the Court had to grapple with the question of who was entitled to the estate of Violet Hamblen-Thomas. Mrs Hamblen-Thomas left her estate to her son Edwin on trust for life to go to his children when he died. If Edwin died without children the estate would instead pass to Violet’s best friend, Enid. However, if Enid had predeceased Violet, it was to go to Enid’s daughter, Victoria.

Violet died in 1973. Enid passed away in 1998 (so, evidently, did not predecease Violet). And Edwin died in 2014 without children. Victoria survived all of them.

The executors’ view was that the gift to Enid failed because although Enid died after Violet, the gift would not vest in Enid until Edwin died without leaving children, and by the time he did so, Enid had died. The gift over to Victoria then failed because Enid had not predeceased Violet. It was, however, potentially open to the Court to consider construing the gift over to Victoria as taking effect in the event of Enid not surviving Edwin, rather than her not surviving Violet. In view of those uncertainties, the executors sought the Court’s guidance on the construction of the will.

Technical issues as to whether legacies have vested or whether interests are contingent are sufficiently rare that they can cause considerable difficulty when they do arise.

Justin Holmes of Radcliffe Chambers appeared for the executors in an application to the Court for a ruling on the correct construction of the will.

He will talk about when legacies vest and principles guiding beneficiaries and executors on how to construe wills.

Category: Events


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