Your browser isn't supported
It looks like you're using an old web browser. To get the most out of the site and to ensure guides display correctly, we suggest upgrading your browser now. Download the latest:

Welcome to the MSE Forums

We're home to a fantastic community of MoneySavers but anyone can post. Please exercise caution & report spam, illegal, offensive or libellous posts/messages: click "report" or email forumteam@. Skimlinks & other affiliated links are turned on

Search
  • FIRST POST
    • MrsMS
    • By MrsMS 13th Jan 18, 6:42 PM
    • 16Posts
    • 3Thanks
    MrsMS
    Testator predeceased by trustee
    • #1
    • 13th Jan 18, 6:42 PM
    Testator predeceased by trustee 13th Jan 18 at 6:42 PM
    Hi to you all

    Sadly, my father recently passed away. In his Will he appoints me to be the sole Executrix and Trustee of his estate. He originally appoints this role to his wife who predeceased him by two years.
    Please could someone help me understand the following provisions set out in his Will?


    I APPOINT my wife THE WIFE to be the sole Executrix and Trustees of this my Will and I DECLARE that the expression "my Trustees" where used in the subsequent clauses hereof shall mean the Trustees for the time being hereof whether original substituted or added PROVIDED ALWAYS that if the said THE WIFE shall have predeceased me or having survived me is unable or unwilling to act in the office of Executor and Trustee then I APPOINT my daughter MISS A as Executrix and Trustee of this my Will
    3. I GIVE my freehold property of 4 Astreet aforesaid subject to tax to my said daughter MISS A absolutely
    4. I GIVE my freehold property of 12 Bway subject to tax to my daughter MISS B absolutely
    5. (a) 1 GIVE DEVISE AND BEQUEATH all the residue of my estate both real and personal whatsoever and wheresoever unto my Trustees upon trust to sell call in and convert the same into money with power to postpone the sale calling in and conversion thereof so long as they shall in their absolute discretion think fit but not being liable for loss
    (b) MY Trustees shall out of the net proceeds of sale and conversion and my ready money pay my funeral and testamentary expenses and debts the Inheritance Tax (if any) and any legacies given by this my Will or any Codicil hereto
    (c) MY Trustees shall stand possessed of the residue of the said moneys and of the property and investments for the time being representing the same and of such part of my said property and assets as shall for the the time being remain unsold and shall hold the same upon trust for my wife THE WIFE absolutely
    (d) PROVIDED ALWAYS if said wife THE WIFE shall die before me my Trustees shall stand possessed of the residue of the said moneys and of the property and investments for the time being representing the same and of such part of my said property and assets as shall for the time being remain unsold and shall hold the same upon trust for my said children MISS A and MISS B if more than one in equal shares absolutely.

    Does this mean that Miss A and Miss B both get a property each and the remainder of the estate (less expenses) is left to The Wife. Then in the event that The Wife predeceased my father then Miss A and Miss B both get a property each and the remainder of the estate (less expenses) is to be divided equally between them both?

    Just to put a twist on that... What if the property of 12 Bway was sold by my father between the writing of his will and his death then would Miss B be entitled to take the cash amount out of the estate? That is amount that the property was sold for (equal but not earmarked)

    Thank you in advance for any advice given.
Page 1
    • Tigsteroonie
    • By Tigsteroonie 13th Jan 18, 6:48 PM
    • 22,645 Posts
    • 56,454 Thanks
    Tigsteroonie
    • #2
    • 13th Jan 18, 6:48 PM
    • #2
    • 13th Jan 18, 6:48 PM
    I am not a lawyer.

    But to my layman's reading and presuming this is English law, if the property 12 BWay was sold before your father died, then your sister Miss B is stuffed. You get the one house, and everything else is split 50:50.

    (Please advise if you are in Scotland rather than England/Wales as the law differs.)
    Going to become Mrs Marleyboy for real in 2018

    MSE: many of the benefits of a helpful family, without disadvantages like having to compete for the tv remote

    Proud Parents to an Au-some son
    • Mojisola
    • By Mojisola 13th Jan 18, 6:53 PM
    • 28,757 Posts
    • 73,457 Thanks
    Mojisola
    • #3
    • 13th Jan 18, 6:53 PM
    • #3
    • 13th Jan 18, 6:53 PM
    But to my layman's reading and presuming this is English law, if the property 12 BWay was sold before your father died, then your sister Miss B is stuffed. You get the one house, and everything else is split 50:50.
    Originally posted by Tigsteroonie
    Unless you decide to honour his intention and divide the cash up so that Miss B gets the amount your father intended.
    • Yorkshireman99
    • By Yorkshireman99 13th Jan 18, 8:54 PM
    • 3,549 Posts
    • 2,893 Thanks
    Yorkshireman99
    • #4
    • 13th Jan 18, 8:54 PM
    • #4
    • 13th Jan 18, 8:54 PM
    Unless you decide to honour his intention and divide the cash up so that Miss B gets the amount your father intended.
    Originally posted by Mojisola
    Agreed but as the OP is unsure she should get paid for advice. The costs will come out of the estate.
    • MrsMS
    • By MrsMS 13th Jan 18, 9:10 PM
    • 16 Posts
    • 3 Thanks
    MrsMS
    • #5
    • 13th Jan 18, 9:10 PM
    • #5
    • 13th Jan 18, 9:10 PM
    Ha Ha Tigsteroonie I think "stuffed" too. Although Mojisola is right. Honouring my fathers wishes is of the upmost importance. one could argue that as it was him who sold the property within a year of drafting this will ? Hmmmm.... looks like i'm heading down Conscience Alley to find my morals!

    This is an English will. Under English Law. However I live in England and Miss B lives in Scotland and both properties are in England.

    Thanks guys for answering
    • Yorkshireman99
    • By Yorkshireman99 13th Jan 18, 9:22 PM
    • 3,549 Posts
    • 2,893 Thanks
    Yorkshireman99
    • #6
    • 13th Jan 18, 9:22 PM
    • #6
    • 13th Jan 18, 9:22 PM
    Ha Ha Tigsteroonie I think "stuffed" too. Although Mojisola is right. Honouring my fathers wishes is of the upmost importance. one could argue that as it was him who sold the property within a year of drafting this will ? Hmmmm.... looks like i'm heading down Conscience Alley to find my morals!

    This is an English will. Under English Law. However I live in England and Miss B lives in Scotland and both properties are in England.

    Thanks guys for answering
    Originally posted by MrsMS
    As executor you are legally obliged to administer the will as written. You have no discretion in the matter regardless of what you think your father's wishes were. The only way the estate can be distributed in a different way is if all the beneficiaries agree and they can execute deeds of variation.
    • Newly retired
    • By Newly retired 13th Jan 18, 11:37 PM
    • 2,316 Posts
    • 2,699 Thanks
    Newly retired
    • #7
    • 13th Jan 18, 11:37 PM
    • #7
    • 13th Jan 18, 11:37 PM
    As executor you are legally obliged to administer the will as written. You have no discretion in the matter regardless of what you think your father's wishes were. The only way the estate can be distributed in a different way is if all the beneficiaries agree and they can execute deeds of variation.
    Originally posted by Yorkshireman99
    Yes, but Miss A is surely free, once she has her inheritance, to share it with her sister if she so chooses?
    • Savvy_Sue
    • By Savvy_Sue 14th Jan 18, 12:57 AM
    • 37,947 Posts
    • 34,409 Thanks
    Savvy_Sue
    • #8
    • 14th Jan 18, 12:57 AM
    • #8
    • 14th Jan 18, 12:57 AM
    As executor you are legally obliged to administer the will as written. You have no discretion in the matter regardless of what you think your father's wishes were. The only way the estate can be distributed in a different way is if all the beneficiaries agree and they can execute deeds of variation.
    Originally posted by Yorkshireman99
    Actually I think in this situation Miss A can do a deed of variation without Miss B's agreement, because it is only to Miss A's detriment. If Miss A decides to do that, a DofV may not be necessary, because ...

    Yes, but Miss A is surely free, once she has her inheritance, to share it with her sister if she so chooses?
    Originally posted by Newly retired
    Absolutely, and at that point it's worth examining Miss A's likely estate, and life expectancy. Because if Miss A's estate is nowhere near paying IHT, it makes no odds what she does, but if IHT is likely to be due, then the Deed moves what is presumably a sizeable amount OUT of Miss A's estate.

    As for English and Scottish differences, I don't think it makes any difference where Miss B lives. The testator and his estate were in England, so English law would apply.
    Still knitting!
    Completed: 1 adult cardigan, 3 baby jumpers, 2 shawls, 3 pairs baby bootees,
    1 Wise Man Knitivity figure + 1 sheep, 2 pairs socks, 1 seaman's hat ...
    Current projects: 1 shawl, another seaman's hat
    • Yorkshireman99
    • By Yorkshireman99 14th Jan 18, 4:04 AM
    • 3,549 Posts
    • 2,893 Thanks
    Yorkshireman99
    • #9
    • 14th Jan 18, 4:04 AM
    • #9
    • 14th Jan 18, 4:04 AM
    Actually I think in this situation Miss A can do a deed of variation without Miss B's agreement, because it is only to Miss A's detriment. If Miss A decides to do that, a DofV may not be necessary, because ...

    Absolutely, and at that point it's worth examining Miss A's likely estate, and life expectancy. Because if Miss A's estate is nowhere near paying IHT, it makes no odds what she does, but if IHT is likely to be due, then the Deed moves what is presumably a sizeable amount OUT of Miss A's estate.

    As for English and Scottish differences, I don't think it makes any difference where Miss B lives. The testator and his estate were in England, so English law would apply.
    Originally posted by Savvy_Sue
    I repeat what I said in post #4. AFAiK alll affected beneficaries have to execute DOVs. Note that the DOVs are not done by the executor who still has to distrusted the estate as per the will.
    • Tom99
    • By Tom99 14th Jan 18, 7:50 AM
    • 1,042 Posts
    • 629 Thanks
    Tom99
    Its only the beneficiaries who's inheritance is adversely affected who need to sign a deed of variation so in this case only Miss A.
    Last edited by Tom99; 14-01-2018 at 10:26 AM.
    • Keep pedalling
    • By Keep pedalling 14th Jan 18, 10:24 AM
    • 4,349 Posts
    • 4,730 Thanks
    Keep pedalling
    This is yet another example of a will so poorly drafted, it would have been better to die intestate.

    If the OP believes her father never intended to treat his children so differently, then they should go down the DOV route, not only for the sake of fairness, but to avoid a massive falling out with her sister.
    • MrsMS
    • By MrsMS 14th Jan 18, 12:45 PM
    • 16 Posts
    • 3 Thanks
    MrsMS
    As executor you are legally obliged to administer the will as written. You have no discretion in the matter regardless of what you think your father's wishes were. The only way the estate can be distributed in a different way is if all the beneficiaries agree and they can execute deeds of variation.
    Originally posted by Yorkshireman99
    Hi Yorkshireman
    I take offence that you assume that I lack discretion and that I have no honour for my father. My father was my hero. I ask you kindly, do not cast judgement of me as you do not know me.
    Could you please kindly explain your comment.
    I understand the subject matter of your above given advice and I am fully aware of my legal obligations. However, I am struggling to connect the relevance of your advice to the matter at hand. How can I distribute an asset that is not there.
    Therefore, I would like to thank you for your time but I find your input nugatory and ineffectual.
    • MrsMS
    • By MrsMS 14th Jan 18, 12:55 PM
    • 16 Posts
    • 3 Thanks
    MrsMS
    Thank you so much for your responses everyone. I will discuss a deed of variation with my legal team.
    In the matter of fairness..... I also have another sibling that isn't included at all. the reason is unknown. My father was a kind loving father and it astonishes me that he would leave a child out of his will.
    • Linton
    • By Linton 14th Jan 18, 12:56 PM
    • 8,870 Posts
    • 8,912 Thanks
    Linton
    Hi Yorkshireman
    I take offence that you assume that I lack discretion and that I have no honour for my father. My father was my hero. I ask you kindly, do not cast judgement of me as you do not know me.
    Could you please kindly explain your comment.
    I understand the subject matter of your above given advice and I am fully aware of my legal obligations. However, I am struggling to connect the relevance of your advice to the matter at hand. How can I distribute an asset that is not there.
    Therefore, I would like to thank you for your time but I find your input nugatory and ineffectual.
    Originally posted by MrsMS
    "No discretion" means that you as executor do not have authority to act differently to what is stated in the will when distributing the estate's assets. If you want to do something diffferently you will need to go through the right process.
    • Tom99
    • By Tom99 14th Jan 18, 12:57 PM
    • 1,042 Posts
    • 629 Thanks
    Tom99
    You are wearing two different an separate hats. As executor you must follow the legal rules when distributing the estate but as beneficiary you can do whatever you like with your inheritance.
    • MrsMS
    • By MrsMS 14th Jan 18, 1:01 PM
    • 16 Posts
    • 3 Thanks
    MrsMS
    Is it possible to somehow make the will invalid and then enter intestate. I have heard that intestate means high IHT
    • MrsMS
    • By MrsMS 14th Jan 18, 1:05 PM
    • 16 Posts
    • 3 Thanks
    MrsMS
    "No discretion" means that you as executor do not have authority to act differently to what is stated in the will when distributing the estate's assets. If you want to do something diffferently you will need to go through the right process.
    Originally posted by Linton
    Oh I see....oops
    My sincere apologies Yorkshireman
    • Tom99
    • By Tom99 14th Jan 18, 1:17 PM
    • 1,042 Posts
    • 629 Thanks
    Tom99
    Is it possible to somehow make the will invalid and then enter intestate. I have heard that intestate means high IHT
    Originally posted by MrsMS
    The inheritance tax rules are the same but a change in beneficiaries can result in more or less tax if one of them is the spouse.
    • MrsMS
    • By MrsMS 14th Jan 18, 1:19 PM
    • 16 Posts
    • 3 Thanks
    MrsMS
    You are wearing two different an separate hats. As executor you must follow the legal rules when distributing the estate but as beneficiary you can do whatever you like with your inheritance.
    Originally posted by Tom99
    What about my fathers wishes? It negates any point of drafting a will if it can just be changed when you pass. My father died unexpectedly aged 62. He was of sound mind. Also, this will is recent. It was drafted in 2012.
    • Mojisola
    • By Mojisola 14th Jan 18, 1:23 PM
    • 28,757 Posts
    • 73,457 Thanks
    Mojisola
    What about my fathers wishes? It negates any point of drafting a will if it can just be changed when you pass. My father died unexpectedly aged 62. He was of sound mind. Also, this will is recent. It was drafted in 2012.
    Originally posted by MrsMS
    Your father has set out how he wanted to divide up his estate; if his beneficiaries decide to distribute the money differently, that's their choice.

    It can only be changed with the agreement of anyone adversely affected by the changes - if that person/those people want to be generous to other people then they are entitled to give away their inheritance.
Welcome to our new Forum!

Our aim is to save you money quickly and easily. We hope you like it!

Forum Team Contact us

Live Stats

286Posts Today

2,502Users online

Martin's Twitter