Is a new will necessary?

kate2510

Please, can any MSE member offer advice?
First some facts:My mother remarried in November 1990
In December 1990 she and her new husband made wills as my mother was facing a heart valve replacement operation.She named her husband and me (daughter) as executors and principal beneficiaries. In early August of this year her husband died. His estate is being dealt with by a solicitor and he writes that it will take 6 to 9 months to complete.
Current situation:My mother is reluctant to make another will as she believes she can't afford it: there is a clause in her will which states
"(iii) If the trusts of any share under this clause fail then that share shall be added to the other shares in the proportion which those shares bear to each other and this provision shall apply to both the original shares and to shares which have increased as a result of the application of this provision

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"
Does the death of her husband mean that she must make a new will or does this provision cover the apportionment of the bequest left to him?

missile

That clause is incomprehensible to me and if the rest of the will is in similar legal gobbledegook I would suggest she gets another will drafted by a.n.other solicitor.

She can't afford it

How much did she pay for that BS? My solicitor drafted our layman friendly wills for £0.

margaretclare

I agree, it should be a lot simpler even in legalese.

We remarried each other in 2002 and made back-to-back wills which leave everything to each other 'providing he shall survive me by 28 days'. If he pre-deceases me or doesn't survive me by 28 days it is divided among the next beneficiaries, the grandkids.

No wonder it's going to take months to sort out, all that stuff about 'trusts' and 'shares'!

Yes, your mum should make another will.

sloughflint

This is a money saving site. Just because we don't understand the wording doesn't mean the Will is no good.A lot of the older style Wills are hard to understand.

Isn't it worth just paying a small amount and having it checked?

My interpretation for what it's worth:
Husband's share will be reallocated to the other benefiaries in the proportion chosen by the person whose Will it is.

These new shares will have the same rule ie if someone else predeceases the person, then a fresh calculation and allocation.

Certainly not sure but I would get it checked out rather than rely on a forum.

Valli

Sloughflint's advice is sound - get it checked - or even easier get a new one written. There is a charity will writing service which runs every November
http://www.willaid.org.uk
personally I would just get a new one written because that supersedes the one written in incomprehensible gobbledegook and you, and she, will know where you stand.

sloughflint

Valli wrote: »

Sloughflint's advice is sound - get it checked - or even easier get a new one written. There is a charity will writing service which runs every November
http://www.willaid.org.uk
personally I would just get a new one written because that supersedes the one written in incomprehensible gobbledegook and you, and she, will know where you stand.

It all depends how straightforward the Will is. Willaid is only free for the most basic of Wills I think ( can't remember where I got that from).

If Op's mother is worried about cost, let's hope the Will is just a bit old fashioned .

localhero

This is a bit of a tricky one. The clause is old fashioned, and not something I personally would recommend, but without seeing the rest of the Will, it's impossible to say whether the Will should be rewritten or not.

The clause certainly appears to be attempting to cater for the possibility of a beneficiary predeceasing.

It's important that the wording is clear - particularly if a non-professional executor is appointed, and so if the rest of the Will is similarly unclear it might be an idea to get it rewritten. If the executor cannot understand it - the real beneficiary will be another solicitor when it's time to obtain probate.

Gaining an opinion might be an alternative, but I'm not sure if this would be any cheaper than getting it rewritten. (Perhaps by somebody able to draft it in a clear unfussy way).

kate2510

Apart from this subclause both wills are quite straightforward and simple. (The delay comes about in finding and valuing her late husband's assets.)
I suspect any legal/paralegal would recommend a new will but if this sub-clause covers the death of a principal beneficiary and the will is not made void by the death of her spouse then - if it ain't broke why fix it?
Like most of their generation - now in their eighties - their savings were hard won and they are/were reluctant to spend unnecessarily.

Willman_Rodders

Hi Kate2510,

The clause that you are troubled with (and in particular the blue text) ...

"(iii) If the trusts of any share under this clause fail then that share shall be added to the other shares in the proportion which those shares bear to each other and this provision shall apply to both the original shares and to shares which have increased as a result of the application of this provision

---

"

... I suspect is designed to avoid partial intestacy. As an example ...

Lets suppose a testator (i.e. a person making the Will) wants to leave a gift shared equally between say 5 children - A,B,C,D and E. The children are to inherit at age 21 - the objective being that all children inherit 20% of the gift. The testator's Will gives a direction that if any child dies under the age of 21 the share is to devolve to the others.

Child A and B die under the age of 21 and predecease the testator. On A's death his/her share is accrued to the surviving children B, C, D and E. i.e. each child would now inherit 25% of the original gift.

On child's B's death though his/her original share - i.e. 20% - is accrued equally by those still alive - but importantly (and perhaps worryingly) the 5% accrued by B on A's death is not shared; the result is potentially partial intestacy - an outcome the testator would not have wished for.

To avoid this risk [of partial intestacy] will drafters include clauses designed to remove any doubt as to the wishes of the testator. Reading the clause in your mother's Will, and breaking the clause down into its two components, I think the clause covers the above risk. If you are technically minded Rickett v. Guillemard (1841) is the case that created this original precedent.

I have seen more 'confusingly' worded clauses than the one contained in your mother's Will that try to achieve the same outcome.

For other readers of this post there are other ways around this particular problem; the solution in this will is just one method. This clause [and the explanation for its inclusion] does demonstrate once again the risks for the unwarry when they choose to draft their own Will.

HTH

localhero

Welcome back to the forum Willman.

Willman_Rodders wrote:

This clause [and the explanation for its inclusion] does demonstrate once again the risks for the unwarry when they choose to draft their own Will.

I think in all likelihood this clause was drafted by a solicitor or an unregulated Willwriter who believes that lots of words are helpful - (reminds me of someone in actual fact). I'm also not sure your little essay complete with 160 year old case law answers the OP's question either.

Mutton_Geoff

Local solicitors produce single wills for much less than £100. Surely money well spent. Why not treat her as you're going to be a beneficiary in any event?