Legal words in a will

Silver_Shark

My husband and I need to make changes to our mirror wills drawn up several years ago. Unfortunately our daughter who is the only named executor has since become estranged from us but we wish her to remain the sole executor as she is more than capable of sorting out our affairs after our deaths. She is also estranged from her brother.  Both our son and daughter are beneficiaries in equal shares.

The clause in our wills which give us the most concern is that which states we give the residue of our estate and any property which we have at our deaths any general power of appointment to our Trustees upon trust with power for our Trustees at their discretion to sell all or any part or parts of such property when they think fit (referred to as the Residuary Trust Fund).

After bequests and expenses this will comprise our house and savings which we want  to be divided equally between our son and daughter.  Does this wording need to be changed from "at their discretion to sell part or parts of the property and when they think fit". Could our daughter think fit to move into the house when we specifically want it to be sold and the proceeds of the house sale plus our savings to be divided equally with her brother?

DancingBadger

We take the view that although we're currently in good health and don't envisage selling up to go into care, we can't predict the future so our Wills contain the phrase, "I direct my Trustees to convert into cash any part of my Residuary Estate which does not consist of cash", to ensure (hopefully) the situation you describe doesn't arise.

RAS

As per above, you need a clause requiring physical assets to be converted to cash. Although if you have anything you think your son would like as mementoes, I'd suggest leaving them to him specifically.

And whilst you are at it, do add a reserve executor, and think about what you want to happen if either of your children dies before you. Are you happy for your assets to go to their spouse/partner, or do you want it to go to their children if they have any?

Mojisola

Silver_Shark said:

My husband and I need to make changes to our mirror wills drawn up several years ago. Unfortunately our daughter who is the only named executor has since become estranged from us but we wish her to remain the sole executor as she is more than capable of sorting out our affairs after our deaths.

She is also estranged from her brother. 

Both our son and daughter are beneficiaries in equal shares.

This is potentially a recipe for disaster.

One of the occasions when it's worth paying for a firm of solicitors to be the executors is when there is a risk of disharmony among the executors/beneficiaries.

Personally, if I was your son and you left the sibling who is estranged from all the family to take control of your estate, I would be very upset.  As the sole executor, she can change the locks on the family home and refuse your son entry; she can refuse to hand over any little personal items that your son would love to have; she can delay/manage the estate slowly so that your son's inheritance remains unavailable to him.

If she also registers the deaths, she can arrange your funerals exactly as she wants - even if that's just a direct cremation with no-one else knowing when it's going to take place.

Keep_pedalling

Mojisola said:

Silver_Shark said:

My husband and I need to make changes to our mirror wills drawn up several years ago. Unfortunately our daughter who is the only named executor has since become estranged from us but we wish her to remain the sole executor as she is more than capable of sorting out our affairs after our deaths.

She is also estranged from her brother. 

Both our son and daughter are beneficiaries in equal shares.

This is potentially a recipe for disaster.

One of the occasions when it's worth paying for a firm of solicitors to be the executors is when there is a risk of disharmony among the executors/beneficiaries.

Personally, if I was your son and you left the sibling who is estranged from all the family to take control of your estate, I would be very upset.  As the sole executor, she can change the locks on the family home and refuse your son entry; she can refuse to hand over any little personal items that your son would love to have; she can delay/manage the estate slowly so that your son's inheritance remains unavailable to him.

If she also registers the deaths, she can arrange your funerals exactly as she wants - even if that's just a direct cremation with no-one else knowing when it's going to take place.

I have to agree with this, why have you excluded your son from being an executor? If he is capable appoint each other and him  as executors and your daughter as back-up. Otherwise appoint a solicitor unless you want to leave  your children at loggerheads after you have gone.

p00hsticks

Silver_Shark said:

The clause in our wills which give us the most concern is that which states we give the residue of our estate and any property which we have at our deaths any general power of appointment to our Trustees upon trust with power for our Trustees at their discretion to sell all or any part or parts of such property when they think fit (referred to as the Residuary Trust Fund).

After bequests and expenses this will comprise our house and savings which we want  to be divided equally between our son and daughter. 

It's common in mirror wills for one party to leave their entire estate to the other and only on the death of the second for everyting to be divided among any children. Are you not doing this ? And if you are not, is there any provision to allow the surviving spouse to remain in the marital home until death ? If there is this could this possibly explain the mention of a trust (I'm not an expert so coudl be completely wrong here).

Were your original wills drawn up by a solicitor ? It sounds as if you are trying to create DIY versions based on the existing will with the amendments you think you need, which IMHO is a recipe for disaster....

Linton

I think you must discuss the circumstances with a solicitor who should be able to determine the precise wording to achieve your  objectives and avoid problems..  Dont diy this or rely on the internet.

TBagpuss

As others have said, in these specifc circumsntaces I would very strongly recommend that you see a solicitor. 

I would also suggest that you consider appointing your son as excutor or making them joint executors. 
If you were to appoint your son as an executor there is nothing to prevent him using a solicitor to deal with any legal or parctical issues.

You could consider appoointing solicitors as executors, as then  they can deal with any flak created by the estrangements.

A third option would be to appoint your son jointly with a nother person such as a trusted friend, again, they could chose to get legal advice if they felt it was needed but if they feel able to deal with it, or if the situation has changed by the time it becomes relevant, then they don't have to.

Either way, I would sugges thaat you speak to your son to find out of there are any specifc items such as any peices of furniture, art or jewellry that are menaingful to him, and gift thoe items to him explicitly in the will. That way there's no dispute over whether they ought to be sold or vlaued and offset against his share ofthe estate as a whole.

If you decide to leve your daughter as an executor then this is even more importnat , but in your case I absolutely would not have her asa sole executor. Quite apart from the distress it might cause your son f she won't communicate wioth him, it would also bea bit of a kick in the teth to her - youare estranged, but you are still expecting her to do all hthe pork related to the esate and yet are splittingthe estate equally so nthing to than kher for doing that.  If you were all on good terms that wouldn't be an issue in the same way but as things are it seems  unwise, and rather unkind, quite apart from being a potential bone of contention between your children

Silver_Shark

Thank you for your replies and advice.

Our mirror wills were drawn up by a solicitor and now is the time for us to make amendments or have new wills drawn up, we do not intend to do this ourselves and intend to consult the same solicitor. We do agree we need to make both our son and daughter joint executors and nothing to prevent either of them using a solicitor to deal with any issues. Both our funerals have been prepaid and will be direct cremations.

As to the clause that concerns us the most we will certainly ask that physical assets be converted into cash.

We have left specific gifts to each of our children and had thought about if either of our children died before us and had named certain charities to benefit but now believe it would be right that our assets go to their spouses.

One further question. Do mirror wills need to mention that upon the death of the first of us then everything goes to the other and only upon the second death does everything go to our children?

Choirgrl

Silver_Shark said:

One further question. Do mirror wills need to mention that upon the death of the first of us then everything goes to the other and only upon the second death does everything go to our children?

Yes they do. Anything that you legally own jointly (e.g. property you own as joint tenants, joint bank accounts) will automatically be owned solely by the surviving spouse, but other things will be handled in accordance with the Will. If you don’t leave things to the surviving spouse on first death then would go to your son/daughter at that point.

if there are personal items that either of  you would want to go to your son or daughter when you individually die, whether that’s first or second, you could have your Wills reflect that. They then would be similar Wills rather than Mirror Wills. Of course, the surviving spouse can also pass them on  during their lifetime, so it may only be worth doing via wills if the items in question are valuable enough that giving them away might amount to deprivation of assets should the surviving spouse go into care and be assessed for financial support.

Silver_Shark

Choirgrl said:

Silver_Shark said:

One further question. Do mirror wills need to mention that upon the death of the first of us then everything goes to the other and only upon the second death does everything go to our children?

Yes they do. Anything that you legally own jointly (e.g. property you own as joint tenants, joint bank accounts) will automatically be owned solely by the surviving spouse, but other things will be handled in accordance with the Will. If you don’t leave things to the surviving spouse on first death then would go to your son/daughter at that point.

if there are personal items that either of  you would want to go to your son or daughter when you individually die, whether that’s first or second, you could have your Wills reflect that. They then would be similar Wills rather than Mirror Wills. Of course, the surviving spouse can also pass them on  during their lifetime, so it may only be worth doing via wills if the items in question are valuable enough that giving them away might amount to deprivation of assets should the surviving spouse go into care and be assessed for financial support.

Thank you. Having just reread the wills we see the clause that reads any property that we have at death and general power of appointment goes to our spouse if they survive for 28 days provided that should the gift fail for any reason then the following clauses of the will take effect which are the gifts to our children.