IN RE PETITION OF STANDARD TRUST LIMITED 1982 (2) ZLR 279 (H)

Flynote

Succession — wills-construction of — trust established under will to provide for testator's widow in her lifetime — renunciation by her of rights — whether interest of beneficiaries may thereby be accelerated and realised as from date of renunciation.

Headnote

The late William Harold Rooken-Smith executed a will, in terms of which he made two specific bequests (one to his widow, one to his daughter) and appointed his children as his heirs. In terms of the will, a trust was created to provide for the support of his widow; on her death, the trust was to be realised and the proceeds, less the specific bequests, to be divided among his children. He gave his widow considerable jurisdiction over the trust in the matter of advances and loans from it to the heirs.

The testator's widow remarried and, being financially independent, agreed to waive her right to receive income from the trust and to the termination of the trust. The applicant, which was administrator and trustee, sought an order authorising the payment of the proceeds of the trust to the heirs. The curator-ad-litem opposed this accelerated interest of the beneficiaries because it would extinguish the contingent rights of the testator's grandchildren to inherit.

Held, that it was trite that the intention of the testator was always the paramount consideration; but in a situation such as this the authorities were moving in favour of allowing the date of vesting of the rights of inheritance to shift from the date of death of the holder of an intervening life interest to the date on which such holder renounced that interest. There was no indication in the testator's will that his widow's death should be the only time for the determination of the ultimate beneficiaries. The sounder approach to these situations is that acceleration should be permitted unless it appears that the testator positively intended to postpone the distribution of capital even if the income beneficiary should renounce his rights.

Held further, the phrase "on the death" (of the income beneficiary) includes the end of the life interest created by means other than death.