Testator predeceased by trustee

MrsMS

Hi to you all

Sadly, my father recently passed away. In his Will he appoints me to be the sole Executrix and Trustee of his estate. He originally appoints this role to his wife who predeceased him by two years.
Please could someone help me understand the following provisions set out in his Will?


I APPOINT my wife THE WIFE to be the sole Executrix and Trustees of this my Will and I DECLARE that the expression "my Trustees" where used in the subsequent clauses hereof shall mean the Trustees for the time being hereof whether original substituted or added PROVIDED ALWAYS that if the said THE WIFE shall have predeceased me or having survived me is unable or unwilling to act in the office of Executor and Trustee then I APPOINT my daughter MISS A as Executrix and Trustee of this my Will
3. I GIVE my freehold property of 4 Astreet aforesaid subject to tax to my said daughter MISS A absolutely
4. I GIVE my freehold property of 12 Bway subject to tax to my daughter MISS B absolutely
5. (a) 1 GIVE DEVISE AND BEQUEATH all the residue of my estate both real and personal whatsoever and wheresoever unto my Trustees upon trust to sell call in and convert the same into money with power to postpone the sale calling in and conversion thereof so long as they shall in their absolute discretion think fit but not being liable for loss
(b) MY Trustees shall out of the net proceeds of sale and conversion and my ready money pay my funeral and testamentary expenses and debts the Inheritance Tax (if any) and any legacies given by this my Will or any Codicil hereto
(c) MY Trustees shall stand possessed of the residue of the said moneys and of the property and investments for the time being representing the same and of such part of my said property and assets as shall for the the time being remain unsold and shall hold the same upon trust for my wife THE WIFE absolutely
(d) PROVIDED ALWAYS if said wife THE WIFE shall die before me my Trustees shall stand possessed of the residue of the said moneys and of the property and investments for the time being representing the same and of such part of my said property and assets as shall for the time being remain unsold and shall hold the same upon trust for my said children MISS A and MISS B if more than one in equal shares absolutely.

Does this mean that Miss A and Miss B both get a property each and the remainder of the estate (less expenses) is left to The Wife. Then in the event that The Wife predeceased my father then Miss A and Miss B both get a property each and the remainder of the estate (less expenses) is to be divided equally between them both?

Just to put a twist on that... What if the property of 12 Bway was sold by my father between the writing of his will and his death then would Miss B be entitled to take the cash amount out of the estate? That is amount that the property was sold for (equal but not earmarked)

Thank you in advance for any advice given.

Tigsteroonie

I am not a lawyer.

But to my layman's reading and presuming this is English law, if the property 12 BWay was sold before your father died, then your sister Miss B is stuffed. You get the one house, and everything else is split 50:50.

(Please advise if you are in Scotland rather than England/Wales as the law differs.)

Mojisola

Tigsteroonie wrote: »

But to my layman's reading and presuming this is English law, if the property 12 BWay was sold before your father died, then your sister Miss B is stuffed. You get the one house, and everything else is split 50:50.

Unless you decide to honour his intention and divide the cash up so that Miss B gets the amount your father intended.

Yorkshireman99

Mojisola wrote: »

Unless you decide to honour his intention and divide the cash up so that Miss B gets the amount your father intended.

Agreed but as the OP is unsure she should get paid for advice. The costs will come out of the estate.

MrsMS

Ha Ha Tigsteroonie I think "stuffed" too. Although Mojisola is right. Honouring my fathers wishes is of the upmost importance. one could argue that as it was him who sold the property within a year of drafting this will ? Hmmmm.... looks like i'm heading down Conscience Alley to find my morals!

This is an English will. Under English Law. However I live in England and Miss B lives in Scotland and both properties are in England.

Thanks guys for answering

Yorkshireman99

MrsMS wrote: »

Ha Ha Tigsteroonie I think "stuffed" too. Although Mojisola is right. Honouring my fathers wishes is of the upmost importance. one could argue that as it was him who sold the property within a year of drafting this will ? Hmmmm.... looks like i'm heading down Conscience Alley to find my morals!

This is an English will. Under English Law. However I live in England and Miss B lives in Scotland and both properties are in England.

Thanks guys for answering

As executor you are legally obliged to administer the will as written. You have no discretion in the matter regardless of what you think your father's wishes were. The only way the estate can be distributed in a different way is if all the beneficiaries agree and they can execute deeds of variation.

Newly_retired

Yorkshireman99 wrote: »

As executor you are legally obliged to administer the will as written. You have no discretion in the matter regardless of what you think your father's wishes were. The only way the estate can be distributed in a different way is if all the beneficiaries agree and they can execute deeds of variation.

Yes, but Miss A is surely free, once she has her inheritance, to share it with her sister if she so chooses?

Savvy_Sue

Yorkshireman99 wrote: »

As executor you are legally obliged to administer the will as written. You have no discretion in the matter regardless of what you think your father's wishes were. The only way the estate can be distributed in a different way is if all the beneficiaries agree and they can execute deeds of variation.

Actually I think in this situation Miss A can do a deed of variation without Miss B's agreement, because it is only to Miss A's detriment. If Miss A decides to do that, a DofV may not be necessary, because ...

Newly_retired wrote: »

Yes, but Miss A is surely free, once she has her inheritance, to share it with her sister if she so chooses?

Absolutely, and at that point it's worth examining Miss A's likely estate, and life expectancy. Because if Miss A's estate is nowhere near paying IHT, it makes no odds what she does, but if IHT is likely to be due, then the Deed moves what is presumably a sizeable amount OUT of Miss A's estate.

As for English and Scottish differences, I don't think it makes any difference where Miss B lives. The testator and his estate were in England, so English law would apply.

Yorkshireman99

Savvy_Sue wrote: »

Actually I think in this situation Miss A can do a deed of variation without Miss B's agreement, because it is only to Miss A's detriment. If Miss A decides to do that, a DofV may not be necessary, because ...

Absolutely, and at that point it's worth examining Miss A's likely estate, and life expectancy. Because if Miss A's estate is nowhere near paying IHT, it makes no odds what she does, but if IHT is likely to be due, then the Deed moves what is presumably a sizeable amount OUT of Miss A's estate.

As for English and Scottish differences, I don't think it makes any difference where Miss B lives. The testator and his estate were in England, so English law would apply.

I repeat what I said in post #4. AFAiK alll affected beneficaries have to execute DOVs. Note that the DOVs are not done by the executor who still has to distrusted the estate as per the will.

Tom99

[FONT=Verdana, sans-serif]Its only the beneficiaries who's inheritance is adversely affected who need to sign a deed of variation so in this case only Miss A.[/FONT]

Keep_pedalling

This is yet another example of a will so poorly drafted, it would have been better to die intestate.

If the OP believes her father never intended to treat his children so differently, then they should go down the DOV route, not only for the sake of fairness, but to avoid a massive falling out with her sister.