My understanding of this will

Mtl2015

I have a copy of my other halfs late grandads will! Quicker than expected!

I want to make sure i am understanding it correctly. It is relatively short with no specific items left to individuals.

My other halfs mum and dad are both executors, as well as a friend but it says only two should act on the will first part is obviously easy to understand (revoke all former wills, appoint executors, refer to executors as 'my trustees').

Then it says;

4. I GIVE DEVISE AND BEQUEATH all my estate both real and personal whatsoever and wheresoever situate unto my trustees upon trust to sell call in and convert the same into money (with power to postpone such sale calling in and conversion of any part or parts of my real or personal estate for so long as they shall in their absolute and uncontrolled discretion think fit without being responsible for loss) and after payment thereout of my debts funeral and executorship expenses inheritance and any other similar tax payable in respect of my estate i direct my trustees to divide the net proceeds of such sale calling in and conversion of my ready money and any part of the residue of my estate for the time being remaining unsold (Such net proceeds ready money and unsold property are hereinafter referred to as 'my residuary estate' into two equal one half parts as follows:-

(a) Upon trust as to one such equal half part for my said son [OHS Dad] if he shall survive me provided always and i declare that if my said son shall predecease my i direct my trustees to stand possessed of this part of my residuary estate for my daughter-in-law [OHS mum] if she shall survive me and provided further i declare that if both my son and my daughter-in-law shall predecease me i direct my trustees to stand possessed of this part of my residuary estate for my grandchildren as shall survive me and live to attain the age of twenty one and in equal shares if more than one.

(b) upon trust as to the remaining equal one half part for such of my grandchildren as shall survive me and live to attain the age of twenty one and in equal shares if more than one.

Then there are two paragrahs with directions to leave the estate to two charities or charities which closest fulfill the objects intended to benefit if A or B are not possible.

Then it says;

(6) MY Trustees shall have the following powers in addition to their powers under general law:

(a) To allow any beneficiary who is under 21 to have the use of any of my personal chattels to which he is entitled

(b)to pay any money to which a beneficiary who is under 21 is entitled to his parent or guardian for his benefit or to the beneficary himself once he has attained 16.

(c) to apply or accumulate income in accordance with section 31 of the trustees act 1925 but subject to the following variations :
(i) my trustees may apply income for the benefit of a beneficiary as they think fir and without the restrictions imposed by the proviso to sub section (1) of the said section (31 of the trustees act)
(ii)throughout the said section the age of 21 shall be substituted for 18 and "infancy" shall mean to period before the attainment of 21

(d) to apply capital for the benefit of any beneficiary as if section 32 of the said act applied to the whole (and not merely one half) of the beneficiarys presumptive or vested share

(e) to insure against loss or damage etc (obviously easy to understand that bit!)

(f) to borrow money as they think fit for any purpose in connection with the administration of my estate

(g) to exercise the power of appropriation under section 41 of the administration of estates act 1925 without ontaining any of the required consents (even if one or more of my trustees is beneficially interested)

(h) to invest and change investments as freely as if they were benficially interested
(i) this power includes the right to invest in unsecured interest free loans or other non income producing assets including property for occupation or use by a beneficiary
(ii) any immovable property shall be held by my trustees on trust either to retain or sell it
(iii) in the professed exercise of this power my trustees shall not be liable for any loss to the trust property arising from any investment or purchase made in good faith

Signed [OHs grandad]

So, My understanding of this is that the estate is split with 50% going to OHs Dad (Or OHS mum if ohs dad had died) and the remaining 50% between OH and his brother - thats not just the house is it? Thats any money etc too?

The rest of it im less clear on but i *think* it only applies if OH or his brother were under 21 (niether are under 21).

Would anyone be so kind as to tell me if my understanding is correct - That there are no directions for OHs mum to withhold any part of the estate once converted into money just because she feels OH shouldnt have it?

BobQ

I think you need to get a qualified solicitor's opinion of this.

I think you are right that the two parts created include everything including any house.

Not sure about the rest. It is potentially establishing a discretionary trust for those beneficiaries under 21 but it does not seem to make clear if bequests to those older than 21 are absolute bequests or when the trust is dissolved. This may be in the legislation referred to.

Crabapple

It's definitely a disposal of everything, so 50/50 not just the house. So essentially your OH will get 25% of the Estate, after all debts, taxes, admin expenses have been paid.

The other provisions are fairly standard clauses especially where the Will may end up providing for child beneficiaries. They give the Trustees the widest possible powers to deal with funds held on behalf of children (or under 21s in this case).

They don't create any ongoing Trust. Ordinarily this should mean that funds are paid out to the beneficiaries as soon as reasonably practical - the Executors need to ensure that they have settled all debts etc as above, sold any property, dealt with HMRC to finalise the IHT (if applicable) and Income Tax position.

Exact timescales are difficult to give as it depends on many variables. 3/4 months from death would probably be absolute minimum for a very simple Estate, it could be a lot longer.

I can't remember from your other post how long ago the death was but it's unlikely that so far there is any issue as the administration will be in progress. I think perhaps you need to wait a little longer to see if money is forthcoming or this is an empty threat, but if necessary see a Solicitor to persue monies that are due to your OH but not being paid out.

Mtl2015

Yeah, i'm not complaining about the time its taken, i understand it takes time. He died in July. Probate was granted in october. there are tennantss in the house no one wanted to kick out over christmas when their tennancy ended

I just wanted to make sure i'm understanding it correctly and that theres nothing there giving her actual permission to carry out the threats she makes.

We're not going to say anything just yet we're going to let her carry on, i think she probably believes she has rights by virtue of being my OHs mum. If she actually attempts to carry out her threats then we will say something and tell her actually she has no right to do that etc.

To be honest i doubt she even realises we can get a copy of the will. We were told the house had been left in OHs dads, ohs mum, Ohs brother and OHs name and that was it...

g6jns_2

Mtl2015 wrote: »

Yeah, i'm not complaining about the time its taken, i understand it takes time. He died in July. Probate was granted in october. there are tennantss in the house no one wanted to kick out over christmas when their tennancy ended

I just wanted to make sure i'm understanding it correctly and that theres nothing there giving her actual permission to carry out the threats she makes.

We're not going to say anything just yet we're going to let her carry on, i think she probably believes she has rights by virtue of being my OHs mum. If she actually attempts to carry out her threats then we will say something and tell her actually she has no right to do that etc.

To be honest i doubt she even realises we can get a copy of the will. We were told the house had been left in OHs dads, ohs mum, Ohs brother and OHs name and that was it...

Time for her to have the short sharp shock treatment. Write a polite letter telling her that you have a copy of the will and that she has to deal wit matters according to it.

TBagpuss

Yes, it reads to me that your OH is entitled to 25% of the net estate.
s.31 of the trustee act dictates what trustees can and can't do with money left to a minor, so those bits give the trustees more flexibility. This doesn't apply at all if your OH and his brotehr are both already over 21.
s.32 allows trustees to use money for the benefit of a beneficiary before the trust says it can - so it would have allowed the trustees to use some of the money for the benefit of your OH or his brother before they turned 21, and the paragraph in the will would mean that they could use the income from all of the trust for the benefit of one of the beneficiaries alone.
s.41 is complicated but roughly speaking allows trustess to give people stuff directly,rather than selling it and giving the beneficiary the money, so if the estate includes (say) shares, they can simply transfer the shares to the beneficiary rather than selling the shares and paying the money to the beneficiary, provided that their value is correctly takemn into account.

Assuming that your OH and his brother are both adults then I think there is bare trust which the trustees *must* end on the request of the benficiaries, so MIL has little, if any discretion.

Mtl2015

TBagpuss wrote: »

Yes, it reads to me that your OH is entitled to 25% of the net estate.
s.31 of the trustee act dictates what trustees can and can't do with money left to a minor, so those bits give the trustees more flexibility. This doesn't apply at all if your OH and his brotehr are both already over 21.
s.32 allows trustees to use money for the benefit of a beneficiary before the trust says it can - so it would have allowed the trustees to use some of the money for the benefit of your OH or his brother before they turned 21, and the paragraph in the will would mean that they could use the income from all of the trust for the benefit of one of the beneficiaries alone.
s.41 is complicated but roughly speaking allows trustess to give people stuff directly,rather than selling it and giving the beneficiary the money, so if the estate includes (say) shares, they can simply transfer the shares to the beneficiary rather than selling the shares and paying the money to the beneficiary, provided that their value is correctly takemn into account.

Assuming that your OH and his brother are both adults then I think there is bare trust which the trustees *must* end on the request of the benficiaries, so MIL has little, if any discretion.

Yeah, My OH is in his late twenties and his brother is in his thirties. The will was written when they were both children (1992) so it makes sense that there are clauses relating to them being under 21.

I'm glad i'm reading it right though - Ive spent all week looking up legal terms and reading legislation. I think OHs mum is either bluffing, or she genuinely thinks she has control.

To be honest its not even the money that bothers me - Its the fact that she is using it and by extension OHs grandad to hang over him for no good reason.

I don't think she will try to retain/delay the sale the house either - Because OHs brother is wanting to use his share of the sale towards a deposit on a bigger house - So she'd be spiting him too by doing that which i cant see him or his wife being very happy about as i know they have plans for their money.

I am rather looking forward to being able to tell her she cant do that to OH to be honest, the way she speaks to him has gone too far.

Mattygroves2

She would have control (jointly with her fellow trustee) if this was an ongoing trust. I can't see anything that says the capital must be advanced to the beneficiaries at 21 (in which case it is an ongoing trust) but other informed posters agree that it is a bare trust. To be safe if I was in your shoes I'd be getting a solicitor's opinion.

Mtl2015

So where should the rent that is being paid by the tennants in the house go, Does anybody know?

RAS

To the estate to be distributed in line with the will.

Mtl2015

RAS wrote: »

To the estate to be distributed in line with the will.

Ahh thats what i thought, Wikipedia confused me with this;

"A bare trust (sometimes referred to as a simple trust or mandatory trust) is a trust in which the beneficiary has a right to both income and capital and may call for both to be remitted into his own name.[1]
A simple trust requires that any income it receives be distributed within the tax period it is earned. This is opposite to a complex trust where the funds are not required to be paid out right away, so it can keep gaining income without having to distribute the money or property."