While we often see virtual representation provisions contained in wills and trust instruments, the absence of such a provision is not fatal to the application of the doctrine of virtual representation.
While SCPA §315 provides guidance as to when this doctrine can be applied, there is no provision in SCPA §315 that mandates the need for the inclusion of a virtual representation clause in a will or trust instrument in order for the doctrine to apply to vertical representation. In fact, SCPA §315(8) states that with respect to the non-judicial settlements of accounts by fiduciaries, the doctrine of virtual representation will apply unless the instrument in question specifically provides otherwise. SCPA §2210(14) makes SCPA §315 as equally applicable to voluntary judicial settlements. However, if one wishes to have the statutory provisions cover horizontal representation—where a party to a proceeding has the same interest as a person under disability—then the instrument must so provide (SCPA §315(5)).
