Clause in Will

SiliconChip

My mum died yesterday and I have a question about a clause in her Will (I have the copy that she had at home but haven't yet discussed it with the solicitors who drew it up) that I hope the forum can help to interpret.

a) as to the property "house name" (if I shall own it at the date of my death) it is my wish but without creating any binding trust or obligation that it shall be sold by my Trustees and the net proceeds of sale shall be divided as to two thirds (2/3) to my said daughter Name A and one third (1/3) to my said son Name B absolutely

The property referred to was actually sold in 2010 about 6 months after the date of the Will when she downsized to her current property, so does that mean that this clause no longer has any effect? And if so does the entire estate then fall under the next clause:

b) as to the remainder of my residuary estate as to:-

i) one third (1/3) for my said son Name B absolutely

ii) one third (1/3) for my said daughter Name A absolutely

iii) one third (1/3) equally for my grandchildren Name C and Name D or to the survivor of them both upon attaining the age of twenty one years absolutely

As I'm the son it makes no difference to me, I get 1/3 of the estate whatever, what is affected is the proportions going to my sister and my nieces - she and I would both prefer it all to be under b), and I think that will happen automatically, but I wonder whether you think that is the case? My sister and I are both executors so we will be taking proper legal advice but i wanted to get a head start with an unofficial interpretation.

tacpot12

As the house has been sold, the clause as to what is to happen to it is disregarded. 

JGB1955

It looks to me like clause B now takes precedence. 

Grumpy_chap

SiliconChip said:

My mum died yesterday and I have a question about a clause in her Will (I have the copy that she had at home but haven't yet discussed it with the solicitors who drew it up) that I hope the forum can help to interpret.

a) as to the property "house name" (if I shall own it at the date of my death) it is my wish but without creating any binding trust or obligation that it shall be sold by my Trustees and the net proceeds of sale shall be divided as to two thirds (2/3) to my said daughter Name A and one third (1/3) to my said son Name B absolutely

The property referred to was actually sold in 2010 about 6 months after the date of the Will when she downsized to her current property, so does that mean that this clause no longer has any effect? And if so does the entire estate then fall under the next clause:

b) as to the remainder of my residuary estate as to:-

i) one third (1/3) for my said son Name B absolutely

ii) one third (1/3) for my said daughter Name A absolutely

iii) one third (1/3) equally for my grandchildren Name C and Name D or to the survivor of them both upon attaining the age of twenty one years absolutely

As I'm the son it makes no difference to me, I get 1/3 of the estate whatever, what is affected is the proportions going to my sister and my nieces - she and I would both prefer it all to be under b), and I think that will happen automatically, but I wonder whether you think that is the case? My sister and I are both executors so we will be taking proper legal advice but i wanted to get a head start with an unofficial interpretation.

Even if it does not now fall to (B), as you are in agreement, then you could do a simple DoV to clarify / ensure that it goes to clause (B).  Failing that you can inherit 1/3rd and daughter can inherit 2/3rd then immediately gift half of her inheritance to the grandchildren.  Assuming daughter is in good health and expected to survive 7 years, there should be no real concerns about the immediate gifting of the inheritance impacting her (estate) liability to subsequent IHT.

Who is the Executor of the will?  There may not be any need to involve the original Solicitor to interpret.

JGB1955

If it's option 'A' the daughter can still apportion her share to her own children, via DOV   with no IHT issues.

DairyQueen

Clause a) fails as she did not own the named property at the time of her death. Any other property owned at her death falls into her residual estate and will be subject to clause b).

I have a similar clause in my Will. The named property is subject to a specific clause. I anticipate that I will post-decease the sale and therefore this clause will fail.

SiliconChip

Thanks for the comments, which seem to bear out my own thoughts on clause a).

As some of you have mentioned, a DOV will achieve the aims of clause b) if necessary but what I want to find out is if it is necessary, and the consensus seems to be that it isn't.

@Grumpy_chap, the OP does say that my sister and myself are executors but it doesn't make clear that we are the only executors, so it's correct that we don't need to involve the original solicitors beyond picking up the original of the Will from them - I may well consult with the solicitors here in Birmingham who drew up my own Will.

SeniorSam

Do bear in mind that in order to effect a Deed of Variation, ALL beneficiaries need to agree to it. If any o those are under age, you may have difficulties.  

Mojisola

SeniorSam said:

Do bear in mind that in order to effect a Deed of Variation, ALL beneficiaries need to agree to it. If any o those are under age, you may have difficulties.  

All adversely affected beneficiaries.

Mojisola

SiliconChip said:

the OP does say that my sister and myself are executors but it doesn't make clear that we are the only executors, so it's correct that we don't need to involve the original solicitors beyond picking up the original of the Will from them - I may well consult with the solicitors here in Birmingham who drew up my own Will.

If you two are the only executors named, then you are the only executors.

Savvy_Sue

Mojisola said:

SeniorSam said:

Do bear in mind that in order to effect a Deed of Variation, ALL beneficiaries need to agree to it. If any o those are under age, you may have difficulties.  

All adversely affected beneficiaries.

For complete clarity, if any of the adversely affected beneficiaries are under age, then they can't agree to it. 

But for example if you have an estate split four ways, if two people want to re-direct their inheritance and two don't, those who do can obtain a Deed of Variation. The other two are not adversely affected - not affected at all in fact.