In re Bourke’s Will Trusts: ChD 1980

The 1938 will of a testator was at issue. He died in 1943. The trusts included a life interest for the testator’s widow and, on her death without issue (which happened in 1971), residue was given to the testator’s three half-siblings ‘or their heirs and surviving issue’.
Held: The heirs were to be ascertained in accordance with pre-1926 law by virtue of section 132 of the 1925 Act. It was accepted that ‘issue’ (construed to mean children in the context) were to be ascertained in accordance with the law at the date of the testator’s death in 1943 (though it was not suggested that there were any illegitimate children born after 1969 who might have made a claim). Also, the classes of heirs and issue were in each case to be ascertained at the death of each half-sibling (1958 and 1969 respectively), and not at the date of the widow’s death in 1971.


Slade J


[1980] 1 WLR 539


Law of Property Act 1925 132


England and Wales

Cited by:

CitedRe Erskine 1948 Trust ChD 29-Mar-2012
The trust was created in 1948, and provided gifts over, which had now failed. The court considered the construction of the term ‘stautory next of kin’. The possible beneficiaries claimed through being adopted, arguing that at the date of the last . .
Lists of cited by and citing cases may be incomplete.

Trusts, Wills and Probate

Updated: 08 May 2022; Ref: scu.519436