Very difficult situation regarding grandmother's will
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Thanks again for your input, really appreciate your time.
I think the only option is to make a request on the fund, the only thing is I don't know what I could request that could amount to what I believe I am due, which is 1/4 of what remains in there (total left is 40k). And also back that up with reasons why the trustee should allow the payment to be made.
Indeed. I can't really see why you didn't do that at the outset: whatever your mother thinks about the terms of the trust, reality is the trust does what the trust does, so it is only by asking them that you can establish their position. If the trust said/says no, then you have to deal with that issue, but if they say yes, there is no issue.0 -
Just goes to show that even a paid for will, written by a solicitor can still turn into a complete nightmare.
The will may have made a sort of sense in terms of the law at the time. If you start from the position that (a) paying inheritance tax is so bad that it's worth spending £2 to save £1 of IHT and (b) everyone aged under 25 is a potential drug addict, then this sort of will was almost inevitable. The trust has to be completely discretionary (hence the latitude allowed to the trustees) and without a fully defined set of beneficiaries (note the "any other grandchildren who might appear" clause) as otherwise it falls under Saunders v Vautier (ie, can be wound up once the beneficiaries are all 18) and may not have the desired IHT properties.
As I say, the sane testator would have set up a separate trust for each of the beneficiaries, with provision for early payments in defined circumstances. Then as each beneficiary comes of age they take the proceeds of the trust, either (if they are willing to wait) at the age the will laid down, or if they are so minded at 18 via Saunders. No risk of cross-dealing. Sure to be fair. Yes, it means that the trustees can't take money from the "less deserving" to provide to the "more deserving", but that's a path sure to result in family tensions anyway. Yes, it may not be as effective as an IHT-avoidance vehicle. But it wouldn't be in this sort of mess.
For most testators, trusts are a solution they don't understand to a problem they haven't property thought about. Obviously there are exceptions. They are rare.0 -
Well the 'new' terms have only come to light recently. In the meantime I've been relaxed thinking my brother is 25 next year so I'll be due some money then, only to find out last year it wasn't the case and I may need to do some investigating. Had no idea at all so much was left in the fund, only found that out on Monday, so am now stressed thinking this one step-grandson is going to fleece us out of the lot because the trustee somehow believes only he and my younger brother are eligible to request funds from the trust. After all, when I spoke to her last week on the phone she confirmed he and my brother are able to make requests, which to me having looked at the will makes absolutely no sense at all. I'll have to put a request in and test her resolve, then challenge her if and when she denies it.securityguy wrote: »Indeed. I can't really see why you didn't do that at the outset: whatever your mother thinks about the terms of the trust, reality is the trust does what the trust does, so it is only by asking them that you can establish their position. If the trust said/says no, then you have to deal with that issue, but if they say yes, there is no issue.0 -
If you and your brother put in a request for "whatever we are due in order to even up what you've paid to the other two grandchildren", if I was the trustee I would be only happy to accede to that request. To save myself lots of grief later. As I understand it, I don't need you to pretend it's for university fees, or a new bike, or to help you start a career as a social media influencer, because I have complete discretion.0
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Thanks a lot, appreciate the reply. It's not as much what has been paid to others, rather what's left in the pot and can be requested within the next year.Malthusian wrote: »If you and your brother put in a request for "whatever we are due in order to even up what you've paid to the other two grandchildren", if I was the trustee I would be only happy to accede to that request. To save myself lots of grief later. As I understand it, I don't need you to pretend it's for university fees, or a new bike, or to help you start a career as a social media influencer, because I have complete discretion.
If I have received 2k less than the others and requested an amount to even up what's been paid, she'd only be awarding me 2k, leaving 38k left in the trust to be had by others.
Do you think requesting along the lines of "whatever I am due as a beneficiary based on the remaining funds in the trust" could be an option? I..e essentially requesting a quarter of what remains?0 -
securityguy wrote: »but on the face of it has allowed the trust to be drained for the benefit of precisely the sort of person it set out "protect".
securityguy - don't want to go off at a tangent but can you explain this further please?
The will says that loans can be advanced to beneficiaries but that they need to be repaid. I don't see how this depletes the trust fund unless you are referring to 5.3.2 which permits the trustees to make payments to beneficiaries as they see fit (presumably without any obligation to be repaid). Is this what you mean because it wasn't obvious to me on first reading the will?
Also I understand that the trustees have discretion to make any payments to beneficiaries as they see fit, but is that discretion entirely unfettered? I mean they may be under no obligation to treat all the beneficiaries equally, but surely that doesn't mean they can exercise their discretion unfairly or unreasonably (by for example, deciding to distribute the fund to just one beneficiary)?
In an earlier post you also mentioned that guidance from grandmother to her trustees may exist outside the will, but what weight would that guidance have (if indeed it exists)?
(Slightly embarrassing to have to ask as I actually studied law of trusts and law of succession but it was 40 years ago and has disappeared into the mists of time...)0 -
Well the 'new' terms have only come to light recently... After all, when I spoke to her last week on the phone she confirmed he and my brother are able to make requests, which to me having looked at the will makes absolutely no sense at all. I'll have to put a request in and test her resolve, then challenge her if and when she denies it.
Are you sure the copy of the will you got from your mother is the will and there is no later one? I think you posted earlier that you have requested a copy from the probate registry.Malthusian wrote: »If you and your brother put in a request for "whatever we are due in order to even up what you've paid to the other two grandchildren", if I was the trustee I would be only happy to accede to that request. To save myself lots of grief later. As I understand it, I don't need you to pretend it's for university fees, or a new bike, or to help you start a career as a social media influencer, because I have complete discretion.
I think this is how I'd be looking at it if I were you OP.0 -
Do you think requesting along the lines of "whatever I am due as a beneficiary based on the remaining funds in the trust" could be an option? I..e essentially requesting a quarter of what remains?
Only if the other four beneficiaries all ask for the same thing so the trustee pays out what everyone is due to make it square, and the trust is wound up. Kind of like doing a Saunders v Vautier on it without the courts being involved.
As I understand it, the entire problem with this trust is that, if you ask for 2k to even it up plus 9.5k of the remaining 38k, you are then still entitled to 1/4 of the remaining 28.5k, so it is now you in the position of the youngest grandchild and taking an unequal share out.
Does that make sense?0 -
Hi,Manxman_in_exile wrote: »Are you sure the copy of the will you got from your mother is the will and there is no later one? I think you posted earlier that you have requested a copy from the probate registry.
Thanks again.
The copy we have is the copy the latest trustee shared with my mother. I have also requested a copy from the probate registry yes.0 -
Yep that makes complete sense. My two brothers are in agreement and would like it wound up and their share paid out, but the trustee, for some yet unknown reason, told me only the two youngest beneficiaries have access to the funds until the youngest turns 25.Malthusian wrote: »Only if the other four beneficiaries all ask for the same thing so the trustee pays out what everyone is due to make it square, and the trust is wound up. Kind of like doing a Saunders v Vautier on it without the courts being involved.
As I understand it, the entire problem with this trust is that, if you ask for 2k to even it up plus 9.5k of the remaining 38k, you are then still entitled to 1/4 of the remaining 28.5k, so it is now you in the position of the youngest grandchild and taking an unequal share out.
Does that make sense?
I will request we be paid an equal share, but really doubt she'll agree going off her comments about who is currently able to access the funds.0
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