Trust Deed versus will - which has precedence?

sunderj

An unmarried couple (one with dependent children, one with adult offspring) puchase a property together. They are careful to think through issues of inheritance etc and puchase the property as "tenants in common", drawing up a trust deed setting out rights & obligations, and mirror wills reflecting their wishes to both provide for each other and preserve their childrens inheritance.

The partner with dependents passes away, but not before changing their will so that it is conflicts with the provisions of the original trust deed. Specifically, the deed allowed for the remaining partner to remain in the property, whereas the amended will requires it to be disposed of.

Which of the documents takes precedence?

daska

My guess (and I stress that it is only a guess) is that the Trust Deed would take precedence on the basis that the restrictions of the Trust would have needed to be dealt with in order to free up the property for it to become part of the estate. E.G. I could Will London Bridge to my second cousin but as it isn't legally mine to give the instruction means nothing.

I would suggest that if the executors aren't legally qualified they take professional advice to cover their backs.

dzug1

OTH it's possible that the new will winds up the trust - ie says it is no more. I doubt it though - but it might depend on the finer points of wording of both documents.

Definitely a case for expert advice

Fire_Fox

I believe a Deed of Trust is a legally binding agreement between two parties, one party cannot unilaterally dissolve or cancel that through any means. But definitely get legal advice.