husbands ex wifes will!!! help

Willman_Rodders

Hi Very Skint,

Thanks for printing the clause in full. Before I break the clause into its segments I am a little puzzled by the statement 'for the maintenance education or benefit (but not advancement)'.

People often refer to the advancement of children in the same breath as they talk about educating their children. How you can differentiate between the two, I suspect, would be difficult.

For Will Drafters the term has a different meaning. It gets a little technical here .... Where a person gives someone an item this may create an implied or resulting trust. So, if you gave your spouse your watch while you go jogging this creates a resulting 'trust'; you expect your spouse to look after your watch and return it to you in due course, undamaged. If you gave your spouse £10 and they spent it - which is what most spouses do, or it it just mine who does - (without you giving further specific instruction to the contrary) they could argue that you had given them the £10 to spend as they see fit. The defence by them - perhaps unknowlingly - is a Presumption of Advancement. Countering the charge of a 'resulting trust' is the 'presumption of advancement'.

Will-drafters usually include a specific clause granting powers to the trustees that supplement the statutory powers of maintenance and advancement conferred by sections 31 and 32 of the Trustee Act 1925; it is unusual to reduce those statutory powers. Further we usually cross reference the clause to the Act to avoid any possible misunderstanding. Your phrase does not appear to clarify its intended meaning.

Now to the meaning of the clause.

"My trustees shall have power'
This is the standard opening phrase indicating that some 'power' is to be given/granted to the trustees.

'to pay the whole or any part of the income or capital from my residuary estate ... to any beneficiary'
This authorises the trustees, at their discretion (i.e. they can if they so wish) to release income, or capital, from the trust fund. This clause is important in that it confirms this to be a discretionary trust (as opposed to any beneficiary having a definite right to their capital or income.)

'for the maintenance, education, or benefit'
This sets out for what purposes the monies can be released from the trust fund by the trustees. It also confirms this is an 'accumulation and maintenance' trust, and therefore under the old tax rules qualifies for preferential tax treatment.

'and shall pay such sums to anyone who appears to them to be a parent or guardian of the minor ... and that persons receipt should be good charge to them'
The trustees, unless granted power otherwise, must ensure that any monies released by them are used for the maintenance, education, or benefit of a minor beneficiary. This tracking of any payment can be burdensome on the trustees, and so it is common to allow a receipt from a guardian to discharge the trustees. That's what this part of the clause does.

'or to the minor himself or herself if above the age of seventeen years ... and that persons receipt should be good charge to them'
This allows the child to grant a discharge to the trustees - as per the previous paragraph- once the child is over the age of 17.

'also the power to apply trust money at any time and from time to time in the purchase or the improvement of any freehold or leasehold dwellinghouse within the united kingdom and permit such dwellinghouse to be used as residence upon such terms and conditions as in their absolute discretion my trustees may from time to time think fit to require."
This section grants further powers to the trustees. Specifically it allows the trust monies to be released by the trustees to improve a property, providing that property is in the UK. So, for example, if a new bedroom extension was required by the guardians to accomadate their extended family, or indeed if the guardians of the orphaned children actually had to move to a bigger house the trust fund could be used to fund the purchase of the bigger house - but subject to the trustees approval.

With the exception of the unexplained 'advancement' phrase this clause, I think, sends a clear message to the trustees.... 'Make provision for my children.' It grants them wide ranging powers. Yes, the trustees have the discretion to choose how to release those funds, because they have to look after the funds for the longer term use by the beneficiaries whilst in the meantime ensuring those beneficiaries obtain the support they need - but the underlying statement is that this trust fund was set up for the benefit of all the deceased's children.

I hope the the above explanation improves your understanding of the content of the clause within the will, and gives you sufficient information to be able to take the matter forward and challenge the advice you have received previously from your solicitor; I suspect you have been misinformed by your him/her. Like Paddys Mum, I cannot see any intention where the funds released from the trust fund must be repaid; it would be most unusual to be the case.

Returning to my earlier post. Where the will fails to make provision for the dependant child solutions do exist. Please seek professional advise.

veryskint_3

Willman_Rodders wrote: »

Hi Very Skint,

Thanks for printing the clause in full. Before I break the clause into its segments I am a little puzzled by the statement 'for the maintenance education or benefit (but not advancement)'.

People often refer to the advancement of children in the same breath as they talk about educating their children. How you can differentiate between the two, I suspect, would be difficult.

For Will Drafters the term has a different meaning. It gets a little technical here .... Where a person gives someone an item this may create an implied or resulting trust. So, if you gave your spouse your watch while you go jogging this creates a resulting 'trust'; you expect your spouse to look after your watch and return it to you in due course, undamaged. If you gave your spouse £10 and they spent it - which is what most spouses do, or it it just mine who does - (without you giving further specific instruction to the contrary) they could argue that you had given them the £10 to spend as they see fit. The defence by them - perhaps unknowlingly - is a Presumption of Advancement. Countering the charge of a 'resulting trust' is the 'presumption of advancement'.

Will-drafters usually include a specific clause granting powers to the trustees that supplement the statutory powers of maintenance and advancement conferred by sections 31 and 32 of the Trustee Act 1925; it is unusual to reduce those statutory powers. Further we usually cross reference the clause to the Act to avoid any possible misunderstanding. Your phrase does not appear to clarify its intended meaning.

Now to the meaning of the clause.

"My trustees shall have power'
This is the standard opening phrase indicating that some 'power' is to be given/granted to the trustees.

'to pay the whole or any part of the income or capital from my residuary estate ... to any beneficiary'
This authorises the trustees, at their discretion (i.e. they can if they so wish) to release income, or capital, from the trust fund. This clause is important in that it confirms this to be a discretionary trust (as opposed to any beneficiary having a definite right to their capital or income.)

'for the maintenance, education, or benefit'
This sets out for what purposes the monies can be released from the trust fund by the trustees. It also confirms this is an 'accumulation and maintenance' trust, and therefore under the old tax rules qualifies for preferential tax treatment.

'and shall pay such sums to anyone who appears to them to be a parent or guardian of the minor ... and that persons receipt should be good charge to them'
The trustees, unless granted power otherwise, must ensure that any monies released by them are used for the maintenance, education, or benefit of a minor beneficiary. This tracking of any payment can be burdensome on the trustees, and so it is common to allow a receipt from a guardian to discharge the trustees. That's what this part of the clause does.

'or to the minor himself or herself if above the age of seventeen years ... and that persons receipt should be good charge to them'
This allows the child to grant a discharge to the trustees - as per the previous paragraph- once the child is over the age of 17.

'also the power to apply trust money at any time and from time to time in the purchase or the improvement of any freehold or leasehold dwellinghouse within the united kingdom and permit such dwellinghouse to be used as residence upon such terms and conditions as in their absolute discretion my trustees may from time to time think fit to require."
This section grants further powers to the trustees. Specifically it allows the trust monies to be released by the trustees to improve a property, providing that property is in the UK. So, for example, if a new bedroom extension was required by the guardians to accomadate their extended family, or indeed if the guardians of the orphaned children actually had to move to a bigger house the trust fund could be used to fund the purchase of the bigger house - but subject to the trustees approval.

With the exception of the unexplained 'advancement' phrase this clause, I think, sends a clear message to the trustees.... 'Make provision for my children.' It grants them wide ranging powers. Yes, the trustees have the discretion to choose how to release those funds, because they have to look after the funds for the longer term use by the beneficiaries whilst in the meantime ensuring those beneficiaries obtain the support they need - but the underlying statement is that this trust fund was set up for the benefit of all the deceased's children.

I hope the the above explanation improves your understanding of the content of the clause within the will, and gives you sufficient information to be able to take the matter forward and challenge the advice you have received previously from your solicitor; I suspect you have been misinformed by your him/her. Like Paddys Mum, I cannot see any intention where the funds released from the trust fund must be repaid; it would be most unusual to be the case.

Returning to my earlier post. Where the will fails to make provision for the dependant child solutions do exist. Please seek professional advise.

Thanks so much for your explaination although i am still a little puzzled as to what some things mean. Too technical I think!!. As it happens we are currently or rather half way through having an extension built to accomodate the children as our house was too small, we approached the trustees about releasing some funds to help towards this, we asked in a polite manner and stated the reasons so the children would have a little more room, the trustee (grandma) flatly refused and this resulted in her not contacting the children for three months afterwards even though we told her from the beginning she could see the kids anytime just ring first. So at this point we had to remortgage our house to pay for this, putting us in more debt. We didnt ask for much just something towards to help, and as there is only my husband working if the interest rates keep going up we could find the repayments more difficult. We are so annoyed as we took the children in and accomodated thiem into our lives as best as we can and they have a loving stable home, we have done this without the help of anyone including social services etc, so why they would refuse to help us is beyond me. If you have any more advice it would be appreciated, although we have made an appointment to see a solicitor on tues as you advised although i dont know if we could take it further as we cant afford to. Its a catch 22 situation.

paddy's_mum

A few random thoughts. Are you able to say approximately how old the children are?

When you see the solicitor, almost your first question should be about 'breach of trust' as Willman Rodders posted earlier in this thread.

I believe that if the children get Legal Aid to take court action for breach of trust, the costs will not come out of the estate but from the executors themselves for failing in their duties and obligations.

I would further suggest that you contact the probate registry for your area and ask for a general search against the ex wife's name. It is Public Information and not expensive (the figure £12 is nagging at the back of my mind) and should enable you to find out exactly what the trust funds amount to. At the moment you are rather in the dark, and I am quite sure that the solicitor "dealing with the will" ie theirs, will not make effort to keep you acquainted with the realities of the situation.

Knowing the value of the estate might affect how you think about things. For example, if the fund is £250,000 it would be madness for the trustees to continue to deny you. However, if it is only say £30,000 and divided between three children, you may feel the game is not worth the candle.

No offense intended, but you sound somewhat fearful of the 'legal' processes. Would it help you get more out of your solicitor appointment if you could get someone level-headed and calm (your Mum or sister perhaps) to come with you and sit there just to take notes on what advice the solicitor gives you? It can, I know, seem very intimidating and while part of you is listening hard, the other part is thinking about what else you must tell him or her and so much 'goes out the window' as it were.

Not a happy situation and I feel for you. I do think you must somehow find the money to pursue this, not only for yourselves and your struggles but for the children too. Good luck at the appoinment and do come back and let us know how it went.

hilstep2000

Poor you!
When we made out our will, we asked my kids Godparents to be Guiardians, with the money being in trust till hey were 21. BUT we also added that they could use the money beforehand for our kids education, living expenses etc. The solicitor said " You do realise that you'd be giving them carte blanche with your childrens' money?" My answer was "You can't foist two kids on someone else and expect them to pay! If I thought their Godparents were going to squander the money I wouldn't have asked them to be Guardians in the first place!"
I wish people would think about this. Hoepfully you'll get some help soon.
Are you their official Guardians? If not, are they in the care of Social Services? The reson I ask is years ago, my Grandparents took on my Grandma's niece & nephew when her sister died. Because they had no one else, hey were in the care of Social Services. The Social Workers told my Grandparets to officially FOSTER them, (They had to go to court, but it was very quick) that way, they stayed with my Grandparents, but they were paid a Foster Allowence for them!

veryskint_3

paddy's_mum wrote: »

A few random thoughts. Are you able to say approximately how old the children are?

When you see the solicitor, almost your first question should be about 'breach of trust' as Willman Rodders posted earlier in this thread.

I believe that if the children get Legal Aid to take court action for breach of trust, the costs will not come out of the estate but from the executors themselves for failing in their duties and obligations.

I would further suggest that you contact the probate registry for your area and ask for a general search against the ex wife's name. It is Public Information and not expensive (the figure £12 is nagging at the back of my mind) and should enable you to find out exactly what the trust funds amount to. At the moment you are rather in the dark, and I am quite sure that the solicitor "dealing with the will" ie theirs, will not make effort to keep you acquainted with the realities of the situation.

Knowing the value of the estate might affect how you think about things. For example, if the fund is £250,000 it would be madness for the trustees to continue to deny you. However, if it is only say £30,000 and divided between three children, you may feel the game is not worth the candle.

No offense intended, but you sound somewhat fearful of the 'legal' processes. Would it help you get more out of your solicitor appointment if you could get someone level-headed and calm (your Mum or sister perhaps) to come with you and sit there just to take notes on what advice the solicitor gives you? It can, I know, seem very intimidating and while part of you is listening hard, the other part is thinking about what else you must tell him or her and so much 'goes out the window' as it were.

Not a happy situation and I feel for you. I do think you must somehow find the money to pursue this, not only for yourselves and your struggles but for the children too. Good luck at the appoinment and do come back and let us know how it went.

Hi Thanks for your support its appreciated. The children are 11 and 10 (who lost their mum) and the other two are 13 and 8. We are more or less 99% sure there will be at least £30,000 EACH as we have roughly worked it out. It makes sense about the children going for breach of trust as we really dont want them paying for legal bills out of their trust money as i said earlier it had to go through the courts for their half brother to be added onto the will and that we were told even though they got legal aid it had to be repaid back out of all threes share (stupid isnt it!!) I am fully prepared to see the solicitor as i am writing questions beforehand as to what to ask as i am going with my husband,(i am an only child and parents away ) Thanks again for all the help and will keep you posted.

veryskint_3

hilstep2000 wrote: »

Poor you!
When we made out our will, we asked my kids Godparents to be Guiardians, with the money being in trust till hey were 21. BUT we also added that they could use the money beforehand for our kids education, living expenses etc. The solicitor said " You do realise that you'd be giving them carte blanche with your childrens' money?" My answer was "You can't foist two kids on someone else and expect them to pay! If I thought their Godparents were going to squander the money I wouldn't have asked them to be Guardians in the first place!"
I wish people would think about this. Hoepfully you'll get some help soon.
Are you their official Guardians? If not, are they in the care of Social Services? The reson I ask is years ago, my Grandparents took on my Grandma's niece & nephew when her sister died. Because they had no one else, hey were in the care of Social Services. The Social Workers told my Grandparets to officially FOSTER them, (They had to go to court, but it was very quick) that way, they stayed with my Grandparents, but they were paid a Foster Allowence for them!

Yes my husband is the childrens dad so they automatically came to us as they were married when the children were born i also applied for parental rights for the kids which i have now got. So the fostering thing is outof the question. I wouldnt touch social services with a barge pole as when it first happened the police were in contact with my husbands ex wifes parents and her youngest child and told them social services would contact them no-one contacted us even the police to offer any support as they thought the kids were with their dad so they must be ok. It was me who sorted out support and counselling for them and when i did contact social services for advice they never rang back. So I decided we are doing ok by ourselves. I even sorted counselling out for myself as it was a big thing to deal with (which im still coming to terms with) having 2 extra kids move in with you overnight and all the emotional baggage that comes with it. Thanks for your support.

paddy's_mum

Veryskint - I remember that your solicitor's appointment is for tomorrow so just nipped in to say that I hope it all goes well for you and that what he/she has to tell you is both helpful and encouraging.

I shall be thinking of you - good luck.

veryskint_3

paddy's_mum wrote: »

Veryskint - I remember that your solicitor's appointment is for tomorrow so just nipped in to say that I hope it all goes well for you and that what he/she has to tell you is both helpful and encouraging.

I shall be thinking of you - good luck.

Thanks so much for your support its so touching.

veryskint_3

Hi just to let all who helped me know that i went to the solicitors this morning(what a pile of crap) the receptionist put me intouch with the wrong department and so made an appointment with another solicitor.:rolleyes: But a very vague answer was no we probably wouldnt be able to access any funds unless the trustees said so(very much doubt it:rolleyes: )BUT we may be able to take them to court AND do it with legal aid, but its a BIG maybe. So will keep you posted.

Keeping_Positive

Good luck. Thinking of you.