What does a codicil look like?

Yorkshireman99

Woolington wrote: »

Hi and thanks Manxman,

I did originally write a long complete thread but got no response so I broke it down into individual parts hoping that the answers to the bits would all add up.

For the majority of their marriage my mum and stepdad wrote individual wills leaving everything to the other. Latterly they made a will together - presumably mirror wills, leaving their house in trust to the four children of their marriages - not sure what would happen to the rest of their estate.

Im just trying to post a sentence in her will (but cant copy it) that might have been the get out clause that allowed him to overturn her wishes:

'my Trustees (ie my stepdad and solicitor,) shall have the following powers: to retain or sell any of the assets constituting the Trust Fund'

Does this fit the outcome ie. overturning of the trust fund into his sole ownership, and in this event should the beneficiaries ( we four siblings) have been informed that the Trust Fund was being overturned?

All executors hold the estate assets in a trust that is formed by almost all wills. It is simply legal jargon that gives the executors the power to deal with the estate assets as directed by the will. It does NOT allow them to alter the terms of the will. The confusion arises because some wills will direct that some, or all, the estate is to be put into a separate trust for the benefit of someone in future. That trust is separate from the one the executors administer.

securityguy

Woolington wrote: »

For the majority of their marriage my mum and stepdad wrote individual wills leaving everything to the other. Latterly they made a will together - presumably mirror wills,

Mirror wills aren't one will, they are two, whose terms mirror each other at the moment they are signed. Either party can at any time, either before or after the death of the other party, re-write their will in any way they choose, invalidating their side of the mirror, and without even having an obligation to tell the other party. The mirror-ness of a mirror will has no legal force, it is just a convenient shorthand for two wills drafted (usually) over the same assets and the same beneficiaries, which at a particular point in time match in some way.

There are such things as joint wills, which cannot be severed by either party either before or after the first death, but they are vanishingly rare; I also suspect that were one to arise, it would be easily challenged by a survivor unless there was a bullet-proof trail to show lack of coercion and independent advice. Courts have proven reluctant to accept financial transactions whose effects are far-reaching where there's a suspicion that one party has pressured the other (for example, the long-running saga of independent legal advice for spouses when family homes are mortgaged to support one person's business) and if joint wills were brought before a court where the effect was to severely limit the actions of the survivor, the onus would be on the deceased to have left a very, very sound set of arguments as to why the survivor had signed voluntarily. Never mind: such instruments appear more in textbooks than in reality.

The key fact is that mirror wills do not provide any limits on what the survivor can do with their assets, unless other mechanisms (usually trusts) are involved.

Woolington

All executors hold the estate assets in a trust that is formed by almost all wills. It is simply legal jargon that gives the executors the power to deal with the estate assets as directed by the will. It does NOT allow them to alter the terms of the will. The confusion arises because some wills will direct that some, or all, the estate is to be put into a separate trust for the benefit of someone in future. That trust is separate from the one the executors administer.

"The key fact is that mirror wills do not provide any limits on what the survivor can do with their assets, unless other mechanisms (usually trusts) are involved."


aha thank you! I think I'm understanding it more now! Confusion over the word 'Trust'. For example one line reads:

My Trustees shall hold the Trust Fund on the following trusts: !!

I think that also demonstrates that there IS a separate Trust in their wills as I was lead to believe -

My Trust Fund shall mean Nil Rate Band Legacy

Do you think this would be a 'Nil Rate Band Discretionary Trust? and if so IS this a Trust that would need grounds to overturn? would that be a Deed of Variation? (sorry if I'm getting this all wrong! it's been a mission trying to get my head round a lot of the language involved!)

Crabapple

The words suggest a trust, but it might not be a discretionary one.

Unless you post the whole will on here it's unlikely anyone could be sure, and then you are relying on a bunch of internet strangers with unknown qualifications or experience.

I really think you need to see a lawyer in the real world who can give you some advice having seen the documents so you can work out what has or hasn't happened.

Manxman_in_exile

Crabapple wrote: »

The words suggest a trust, but it might not be a discretionary one.

Unless you post the whole will on here it's unlikely anyone could be sure, and then you are relying on a bunch of internet strangers with unknown qualifications or experience.

I really think you need to see a lawyer in the real world who can give you some advice having seen the documents so you can work out what has or hasn't happened.

I think that this ^^^ is the key point to take away.


EDIT: and I think you've attracted some posters who know more than I do!

Woolington

thank u all!
just one more thing - what difference does the word 'discretionary' make?

If you haven't already done so, might be worth consulting your own solicitor. I understand some will give 30 mins advice for free.

thank u Manxman! all in agreement!! :-)

Manxman_in_exile

Woolington wrote: »

thank u all!
just one more thing - what difference does the word 'discretionary' make?

If you haven't already done so, might be worth consulting your own solicitor. I understand some will give 30 mins advice for free.

thank u Manxman! all in agreement!! :-)

Yes. but looking at all your threads it's going to take a solicitor more(?) than 30 mins to review what you have. If you think it's worth trying to rectify what you think "has gone wrong" there will almost certainly be costs involved. Bear that in mind.


But if you can get free advice go ahead. Make sure you've got your mum's will and evidence as to why you think it wasn't followed. It all hinges on the wording of the will and what the executors did, or did not, do, and why.

Woolington

Good thinking re the 30mins Manxman! I'm not sure that I want to rectify anything, but just to understand and have proof of what did happen - in honour of my mum's memory I suppose. It's niggled for years.

Ive just contacted the new solicitor that took over the now defunct solicitor's practice to make an appointment. The solicitor I need to speak to is on annual leave until next Tues.but they are calling the files up from the vaults. Is it being too optimistic to think she might read out her findings over the phone?

The reason I think the Trust part of the will was overturned was because my stepdad told me this was his inention at the time. Then there was the frantic visits to the solicitor when the 2year 'deadline' approached which fits with there having been a 'Deed of Variation'.

I know I've asked this before, but is there any public record when a will is overturned? Can I order the Deed of Variation if it exists and cut out a visit to the solicitor?

Sorry for being long-winded - it's all making me feel a bit bothered!

Woolington

Another thought - in that a Trust Fund of some kind seems to have existed, would it have been a separate document ?

Yorkshireman99

Once again you need to talk to the solicitor. By the way don't expect a free consultation on a specific case like this. Free consultations are usually just given for a preliminary meeting With a view to some paid work.