Frequently a legacy within a Will is left to a class of beneficiaries and that class is defined by certain characteristics and conditions. This can create a number of identification issues which should be clearly addressed within the document itself.
Identifying a class of beneficiaries is not always easy; the wording of the Will is crucial. A gift to ‘such of my children who survive me’ is relatively straightforward as the class is identified at the date of death.
A condition can complicate identification such as ‘such of my children who survive me and attain the age of 18’. The potential beneficiaries can be identified at the date of death however the actual entitlement is not confirmed until the last of the surviving children reaches the age of 18 (or dies before then).
Different rules for identification apply for fixed interest gifts (such as to my children in equal shares) and a discretionary gift (to a class of beneficiaries in a discretionary trust).
In a fixed interest gift the identification of all beneficiaries within the class is essential to ensure that each receives an appropriate share of the money. In a discretionary trust the identification of all possible beneficiaries is necessary to ensure that the trustees give consideration to the whole class before deciding who is to receive a share of the trust fund. If a testator has stipulated a class of beneficiaries that is too large the whole gift may be void for administrative unworkability as it would be disproportionately expensive or time consuming to establish each person entitled to be considered.
Further consideration should be given to the point at which a class closes. The gifts above ensure the class either closes at death or at a later specified time (when a condition is fulfilled) but some are open-ended, allowing a beneficiary to join a class after the death of the testator. A gift simply ‘to my grandchildren’ is open-ended and it may be many years before it can be safely established that the class is closed.
