My Mums Will

Ceridavies

My Mum has sadly passed away 4 weeks ago
In the will my mum has left her estate to myself and my other brother and her partner, to be plit equally 3 ways, but in the will she says that we will receive the estate attaining the age of 60 (i am 44 my brother is 45) her partner who is in his late 60's does not think this will be a problem to overturn has anyone any thoughts (she did this to protect our other brother who was an alcoholic but sadly died last year but she id not change her will ) we are talking a lot of money over £950,000 not including the house it would be nice to be able to pay our mortgage off early etc
does anyone have any thoughts
Thankyou

TBagpuss

Who are the executors?
It does depend a little bit on the wording of the will, and what powers she gave to thr trustees.

Did she use a solicitor? If so, then I would noramlly expect them to have made a note on the file as to WHY she delayed the payment, and (provided that she gave the trustees discretion) they can simply exercise discretion to distribute earlier. (If there is a record of the fact that it was done to try to prevetn alcoholic brother from drinking himself to death then the rustees can justify winding up the trust early)

If she didn't give the trustees any discretion and if you only become entield at age 60 (what would happen to your share if one of you died between now and turning 60?) it may be slightly more complicated. You may be able to deal with it by way of a deed of variation.

The first step is to chekc the wording of the will and what, if nay, discretion the trustees have. Then if you are not clear, the trustees (probably the same people as the executors) should get some professional advice about how to go ahead.

securityguy

I am not a lawyer.

But isn't the well-established case of Saunders v Vautier relevant here? "if all of the beneficiaries in the trust are of adult age and under no disability, the beneficiaries may require the trustee to transfer the legal estate to them and thereby terminate the trust."

Ceridavies

Thanks for the advice
The solicitor is taking care of the estate the executor is my mums partner but in the will there is no amounts i am just going off what my mum told me a few months ago

konark

Who are the trustees? If they are in agreement the money can be paid. In any case Saunders v Vautier applies as all the beneficiaries are above 18 and of sound mind. So the wait until 60 is totally unenforceable.

The specification that the beneficiaries should be 60 when they inherit is frankly ludicrous, why a solicitor agreed to write this into a will when they would know the above case is beyond me. Maybe they knew it would be overturned but wrote it just to please the testator.

Yorkshireman99

konark wrote: »

Who are the trustees? If they are in agreement the money can be paid. In any case Saunders v Vautier applies as all the beneficiaries are above 18 and of sound mind. So the wait until 60 is totally unenforceable.

The specification that the beneficiaries should be 60 when they inherit is frankly ludicrous, why a solicitor agreed to write this into a will when they would know the above case is beyond me. Maybe they knew it would be overturned but wrote it just to please the testator.

The clause was to protect the interests of her alcoholic son. Perhaps not the best way but not ludicrous.

AnotherJoe

Does the case referred to above mean wills made when children are very young typically leaving money to them at ages above 18 such as 21, 25, 30 are completely unenforceable then ?

getmore4less

Plenty of references even a wiki page for a reasonable summary

https://en.wikipedia.org/wiki/Saunders_v_Vautier

the case was a 21yo(now18 would apply) and 25 to inherit..

securityguy

AnotherJoe wrote: »

Does the case referred to above mean wills made when children are very young typically leaving money to them at ages above 18 such as 21, 25, 30 are completely unenforceable then ?

So far as I understand it from a discussion I had with a lawyer some years ago, discretionary trusts where the trust has no defined beneficiaries and the trustees disburse the money according to a side-letter from the testator are OK, although have the risk that the trustees might not do what you want. But a simple trust which holds money on behalf of named beneficiaries can be wound up by the beneficiaries, provided they all agree, are of the age of majority and are in sound mind.

Mojisola

Ceridavies wrote: »

In the will my mum has left her estate to myself and my other brother and her partner, to be plit equally 3 ways

we are talking a lot of money over £950,000 not including the house it would be nice to be able to pay our mortgage off early etc

Did she have any inheritance tax planning in place? If not, there's going to be a big bill to be paid.

TBagpuss

AnotherJoe wrote: »

Does the case referred to above mean wills made when children are very young typically leaving money to them at ages above 18 such as 21, 25, 30 are completely unenforceable then ?

No. It's the differnce between a bare trust and a discretionary one.
If it is a bare trust then the money is being held for the beneficiary, butthe beneficairy has full rights to the money. If there is a discretionary trust, then then person who set up the trust defiens a class of beneficiaries (which could be a list of names, in which case if all of the named beneficiaries agreed and were adult, the trust could be wound up. But often the calss is more open - it might be "such of my grandchildren as attain the age of 18" which means that you can't have a full list of beneficiaries until there is no possibility of adding any new grandchildren, making it much harder to have eveyone agree.

In this case, it mayu well be possible for the trust to be wound up if all of the beneficiaries want to do so, as all of the beneficiaries are known.