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)).

However, the application of the doctrine is not automatic. While the absence of a virtual representation provision in the governing instrument is not a prerequisite to the application of the doctrine, the failure to adhere to the requirements of SCPA §315 will be. Even if the statutory requirements of the SCPA 315 are adhered to, the penultimate sentence of subsection (7) of SCPA §315 gives the court the latitude to determine whether the proposed representation of a person's interest will be adequate, and if not require that process be served upon these persons. When dealing with those under a disability or who may be unknown or even unborn, the appointment of a guardian ad litem (GAL) may follow, and, in certain situations, is mandated. SCPA §315(2)(iii) requires the appointment of a GAL in situations involving unborn or unascertained persons if there is no person in being having the same interest. It is important that the parties and the court apply the doctrine correctly, because failure to do so may have a ripple effect on future generations since, by its very nature, the doctrine seeks to protect those who are not being made aware of the proceeding and may, at a later date object to the outcome, and, if successful, undo what was done generations earlier.