Very difficult situation regarding grandmother's will

gll5dm

securityguy wrote: »

5.3.5 says the trustees can do what they want without concern for equality amongst the beneficiaries. With that clause in place, it's almost impossible to see what grounds you could ever have to challenge their decisions even if they gave all the money to one of you. It might have been seen to be necessary twenty years ago to ensure the trust had the tax advantages that were probably part of its intent, but it makes any argument about fairness impossible.

Oh I get that. Just have to hope the trustee sees there is a year remaining and four people as part of the trust fund, and one of them has already received a lump sum of ~£30k (the share that was originally going to his father but got changed to him).

I guess another approach would be to explain I have read the will and there is no mention of me no longer being able to access the trust, and then find a reason why I should be able to access funds from it.

gll5dm

pjcox2005 wrote: »

Not of much help, but out of curiosity has the fourth (estranged/removed) grandchild looked to actually take funds out?


You mention a £30k loan that has been repaid, so no money removed there, and you mention later about loans which again would need to be repaid.


At no point have you said anything about people withdrawing excessive amounts so I wonder if that gives a bit more comfort that it may not be as bad as expected.

Thanks for your reply!

We will get a more detailed breakdown in a few weeks / whenever the trustee gets back in touch of what he has received over the past 15 years. All I know is that in the first three years he only received around 1000 pounds (on top of the 30k lump sum he received).

Honestly, that guy must feel like he won the lottery. He never even met the woman.

Manxman_in_exile

I think you need to accept the fact that the step-grandson has already received a lump sum from your grandmother's will. Obviously your step-grandfather had fallen out with his son and disinherited him, but he (and presumably your grandmother) obviously wanted whatever the step-son would have got to go straight to the step-grandson. But then your grandmother and step-grandfather still wanted him to benefit from the fund the same as the other grandchildren. (Does that all make sense?) I can sort of see why they did this although it may seem a bit odd.


Unfortunately, because of the wording of 5.3.5 my phrase above, "...the same as the other grandchildren..." is rendered meaningless as explained by securityguy - the trustees can distribute the fund as they see fit - share it equally or give it to just one grandchild.


I'm also still not clear about the loan given to the step-grandchild. It has been paid back, hasn't it, so the overall fund hasn't been diluted in any way? Or am I mis-understanding?


You could try to get something out of the fund now as the will doesn't seem to say you have to be under 25, but as it would be a loan, you would have to pay it back according to the will wouldn't you? But please remember, I know very little in this area and there are much more knowledgeable posters than me here.


I think it's clear to me that despite the wording (for tax purposes?) of 5.3.5 your grandmother must(?) have intended you all to be treated equally. Have you any grounds or reason to believe the trustees would not do this, even though according to the specific terms of the will they don't have to? I mean, what reason would they have not to treat you all equally?


But it's quite possible I don't know what I'm talking about...


Edit: Cross posted with OP's #33

gll5dm

Manxman_in_exile wrote: »

I think you need to accept the fact that the step-grandson has already received a lump sum from your grandmother's will. Obviously your step-grandfather had fallen out with his son and disinherited him, but he (and presumably your grandmother) obviously wanted whatever the step-son would have got to go straight to the step-grandson. But then your grandmother and step-grandfather still wanted him to benefit from the fund the same as the other grandchildren. (Does that all make sense?) I can sort of see why they did this although it may seem a bit odd.

That makes sense, I understand it but think it's absolutely awful. But the will was from my step-grandfather and then my grandmother took it once he died and filed it the way it is today. The two witnesses to the will were friends to her stepson so it's no surprise it's set up to hugely benefit this guy and not her real grandchildren.

Manxman_in_exile wrote: »

Unfortunately, because of the wording of 5.3.5 my phrase above, "...the same as the other grandchildren..." is rendered meaningless as explained by securityguy - the trustees can distribute the fund as they see fit - share it equally or give it to just one grandchild.

Yep, got that. I have to hope the trustee realises there are four people in the trust and doesn't just accept any random request from this step-grandson. Who knows..

Manxman_in_exile wrote: »

I'm also still not clear about the loan given to the step-grandchild. It has been paid back, hasn't it, so the overall fund hasn't been diluted in any way? Or am I mis-understanding?

As far as I am aware it has been paid back. His parents used it to purchase a house around 15 years ago. Unfortunately it appears my mother either didn't read the will properly or completely misunderstood it, possibly because she got a lump sum and automatically assumed we were left the same amount just set up slightly differently. She doesn't seem to know how it got understood so wrong.

Manxman_in_exile wrote: »

You could try to get something out of the fund now as the will doesn't seem to say you have to be under 25, but as it would be a loan, you would have to pay it back according to the will wouldn't you? But please remember, I know very little in this area and there are much more knowledgeable posters than me here.

It wouldn't be a loan. There is X amount left in the fund and nothing in the will to suggest you have to be under 25 to request funds. The other guy got a loan as it was in the fund as an option, but any time we've requested funds we've had to get in touch with the trustee and explain what and why, and then they've sent us a cheque.

Manxman_in_exile wrote: »

I think it's clear to me that despite the wording (for tax purposes?) of 5.3.5 your grandmother must(?) have intended you all to be treated equally. Have you any grounds or reason to believe the trustees would not do this, even though according to the specific terms of the will they don't have to? I mean, what reason would they have not to treat you all equally?

I don't have any reason to not believe that, but on the other hand I don't know what this other guy has received in the past 15 years or indeed what the total amount of the trust was. When we find out in a week or so we may find out he's taken thousands and thousands out of it.

I really, really wish my mother was able to read properly, as we wouldn't be in this position. Grr.

Yorkshireman99

gll5dm wrote: »

Oh I get that. Just have to hope the trustee sees there is a year remaining and four people as part of the trust fund, and one of them has already received a lump sum of ~£30k (the share that was originally going to his father but got changed to him).

I guess another approach would be to explain I have read the will and there is no mention of me no longer being able to access the trust, and then find a reason why I should be able to access funds from it.

Sorry to say you are missing the crucial point that the Trustees have almost complete freedom to do as they see fit. There has been, AFAIK, no obligation to "fairness" as long as they comply with the law. Sadly the solicitor who worded the will was an idiot.

gll5dm

Yorkshireman99 wrote: »

Sorry to say you are missing the crucial point that the Trustees have almost complete freedom to do as they see fit. There have, AFAIK, no obligation to "fairness" as long as they comply with the law. Sadly the solicitor who worded the will was an idiot.

I get it, I know the will says the trustee can do as they see fit. I can only *hope* for the trustee to act fairly towards everybody, but know she is not obliged to.

Two problems:
1 - Like you said, the wording.
2 - 15 years of my mother telling us completely the wrong info, to the point where I can no longer claim any funds when just under 50k is up for grabs by this guy who didn't even meet my grandmother and already received 30k in a lump sum.

Makes me feel sick, and yes, I know it's in the will so he's able to get his hands on it.

securityguy

Yorkshireman99 wrote: »

Sorry to say you are missing the crucial point that the Trustees have almost complete freedom to do as they see fit. There has been, AFAIK, no obligation to "fairness" as long as they comply with the law. Sadly the solicitor who worded the will was an idiot.

Or, alternatively, cautious about ensuring that the trust was discretionary in order to avoid Saunders and in order to avoid (I think, it's a long time ago) some of the HMRC objections to trusts being used to defeat inheritance tax.

As I think you've pointed out, accurately, the problem with discretionary trusts is that it involves placing completely trust in the trustees; if you set up strong limits to the powers of the trustees, then the trust ceases to be discretionary and falls under different tax and other legislation.

In my book, this is another argument as to the risks of discretionary trusts: in this case, had the money simply sat in an investment vehicle for each beneficiary and been paid to them at 18, perhaps with some provision for early payments in case of need, everyone would have been a lot happier, there would have been a lot less in the way of fees (I doubt the solicitors managing this disaster have been doing so out of charity and a sense of goodwill) and a lot of trouble would have been avoided.

securityguy

gll5dm wrote: »

2 - 15 years of my mother telling us completely the wrong info, to the point where I can no longer claim any funds

Why not? I can't see any wording which excludes older recipients, just that the trust is wound up when you are all 25. Older beneficiaries are still eligible to ask the trustees for money.

For other readers: messing about with trusts because you have outmoded views on the inability of young people to spend money wisely results in disasters like this. This is a trust which avoids the use of Saunders v Vautier to get the money at 18, but on the face of it has allowed the trust to be drained for the benefit of precisely the sort of person it set out "protect".

gll5dm

Thanks again for your input, really appreciate your time.

I think the only option is to make a request on the fund, the only thing is I don't know what I could request that could amount to what I believe I am due, which is 1/4 of what remains in there (total left is 40k). And also back that up with reasons why the trustee should allow the payment to be made.

Sea_Shell

Yorkshireman99 wrote: »

Sorry to say you are missing the crucial point that the Trustees have almost complete freedom to do as they see fit. There has been, AFAIK, no obligation to "fairness" as long as they comply with the law. Sadly the solicitor who worded the will was an idiot.

Just goes to show that even a paid for will, written by a solicitor can still turn into a complete nightmare.