Discretionary Trusts Help please !

Louisarose

Hi,
I,m hoping I'm in the right place for some understandable advice!
I will be as succinct as I can be, my father became unwell in 1995 and passed away in 1999. When he became unwell my parents put their house into a discretionary trust. When my father passed the will was made to the effect that all assets passed to my mother his spouse. Sadly my mother passed away earlier this year but in 2013 she made some changes to her will which altered the division of her assets from 1/3 each to the 3 children to 45%, 45% 10%. We were all made fully aware of this change and her reasons and were happy with her decision which was completely hers to make. The issue we have now is that the solicitors seem to be advising that the property must be divided as per my fathers original wishes, which was 1/3 each, not as per my Mums amended last will and testament. We do not believe that, if this is the case, my Mother was made aware of this when she made the amendment to her will.
So what I'm looking for is some advise as to how we deal with this, has anyone else come across this situation and how did you resolve it .
Many thanks
x

G6JNS

Louisarose wrote: »

Hi,
I,m hoping I'm in the right place for some understandable advice!
I will be as succinct as I can be, my father became unwell in 1995 and passed away in 1999. When he became unwell my parents put their house into a discretionary trust. When my father passed the will was made to the effect that all assets passed to my mother his spouse. Sadly my mother passed away earlier this year but in 2013 she made some changes to her will which altered the division of her assets from 1/3 each to the 3 children to 45%, 45% 10%. We were all made fully aware of this change and her reasons and were happy with her decision which was completely hers to make. The issue we have now is that the solicitors seem to be advising that the property must be divided as per my fathers original wishes, which was 1/3 each, not as per my Mums amended last will and testament. We do not believe that, if this is the case, my Mother was made aware of this when she made the amendment to her will.
So what I'm looking for is some advise as to how we deal with this, has anyone else come across this situation and how did you resolve it .
Many thanks
x

It depends on the terms of the trust and what divsion, if any, of trust property there has been made. In any case can the problem be solved by a deed of variation?

Louisarose

Thanks for that G6JNS, we do have an appointment with the solicitors in a couple of weeks. I have never heard of a deed of variation ? The solicitors seem to be saying that if all 3 of us agree to disperse the funds in the way we feel Mum would have wanted they will do this but we are unsure if this could be agreed. Is that a Deed of variation?


Thanks again

G6JNS

Louisarose wrote: »

Thanks for that G6JNS, we do have an appointment with the solicitors in a couple of weeks. I have never heard of a deed of variation ? The solicitors seem to be saying that if all 3 of us agree to disperse the funds in the way we feel Mum would have wanted they will do this but we are unsure if this could be agreed. Is that a Deed of variation?


Thanks again

A DOV has to be executed within two years of the death. All beneficiaries have to agree. It simply allows the amounts to each beneficiary to be changed. From what you said there was no dissent and if so it should be easy.

Tuesday_Tenor

I'm no expert in this area, but here are my assumptions/understanding, which might give you some things to check with the solicitors.

I think the solicitors are saying that the Discretionary Trust owns the property and has done since 1995.

(Questions : is this apparent on the records at the Land Registry? Who were the Trustees? What were the terms of the Trust? What was to happen if a Trustee died?).

Therefore the property was not among assets of you father that passed to your mother. Therefore it was not your mother's asset to leave to anyone in her will.

A Deed of Variation is a legal means of altering a will, with the agreement of all affected beneficiaries. However I don't think it's relevant in this case as it's the terms of dissolving the Trust that you want to change, not the will. It sounds as though the solicitors are saying that there is a way of doing this, to achieve what you want (in recognition of you mothers wishes).

Hope this helps shed some light, even if I'm not completely correct ...