I'm trustee and executor of dad's last will and testament

adeo

Sarahspangles said:

Actually will nothing to do with ex wife, don't really know why that was mentioned, it's really refering to me as ex-wifes carer, that being me the dad's son. 

That’s a very long winded way to say ‘my son’.  Do you think the solicitors could have misunderstood your father’s instructions?

Anything possible!

CKhalvashi

poppystar said:

I’m not sure this gives you a right to live in the house. It sounds like it has been left in trust to the grandson until his death and after that will be distributed as per the residual estate clause. 

I view this as the ownership will transfer but right to residency will remain.

I have a similar specific condition with regard to a named individual property that we own 50% of, with legal title transferring to our children in relation to that ownership share but it can't be sold until the other party either consents to it or until their death, thus fulfilling our contractual obligation to that party. That doesn't mean they don't have use of that property though in line with the current agreement (subject to paying half the property taxes, bills according to an agreed formula and half of any agreed upgrades, as is also in that agreement) as it's not a main home for either of us, however while I can see the implied meaning in that being that the OP won't live there, the will doesn't specifically state this. You'd have to dig out case law on this.

Just to point OP out on terminology here, there's no legal term of 'dependent of the state'. The nephew will have his own income and this is his income to spend as he sees fit, both legally and in reality. The same goes for assets and liabilities.

poppystar

OP you say your father has ‘just’ made you executor so it would seem like this is a recent Will. It does not seem clear at all - you are referred to as ‘my son’ at one point and his ex wife’s carer at another. Then there is the issue pointed out above that if you predecease then you can’t be executor either. I would seriously consider going back to the solicitor and getting written clarification of the position regarding the house and also possibly add an extra executor at the same time. It is always better to preempt confusion rather than deal with it after the death. The very fact that you posted here indicates that there is a lack of clarity and one that no one here can unequivocally resolve for you. Your father needs to get this done while he is still alive and has capacity.

doodling

Hi,

Whilst it might achieve what you and your Dad are expecting (i.e. you living in the house without finishing executing the will), that will does not come across as written with the aim of achieving that and there could be problems with what you want to do.  Some comments:

1. Why does section 6 not simply refer to you rather than mentioning your Dad's ex-wife?
2. Section 6 is all about making sure that your nephew gets the use of the house if you die before your Dad, with all the beneficiaries (or their heirs) eventually getting the proceeds when your nephew passes away. 
3. As others have pointed out, it is odd to have a clause in a will (section 6) dealing with a case where the sole executor has died - who is expected to administer the estate?  The will also refers to "Trustees" which is correct by virtue of the definition in section 3 but feels a little lazy - it wouldn't have taken very long to replace all occurrences of "Trustees" with "Trustee".
4. Section 7b is unusual as your Dad's grandchildren do not inherit (other than the sums in section 4) if their parent has died and they are under 18 when your Dad dies.  I assume that there was a good reason for this as it is the opposite of what many people desire?
5. If you are relying on section 5 to live in the house indefinitely after you Dad has died, without completing the execution of the estate, then I think you are being optimistic.  The will is written on the basis that the house is sold and the proceeds shared as detailed in section 7 (unless you die before your Dad when a lot of that is delayed until your nephew has passed).  It may be possible for you to live there indefinitely, but clauses with wording like section 5 are usually intended to give a lay executor flexibility in dealing with an estate without other beneficiaries picking them up over every little thing that results in loss, not to delay execution of the estate indefinitely.  After your Dad passes away, if I was a beneficiary and you expressed the intention to live in the house indefinitely then I would be talking to a solicitor about whether I could remove you as executor on the basis that you were failing to execute the will.  I would also be very wary about the Capital Gains Tax situation - it is possible that if you failed to execute the will but just lived there then there may be 40% tax to pay on any increase in value when it is eventually sold (if this really matters to you, I'd check with an expert - I don't know how principal residence relief interacts with your role as trustee rather than outright owner).

In summary, I think that you should seek professional legal advice if you are intending to delay execution of the majority of the will indefinitely, you may be vulnerable to a challenge by other beneficiaries.  If I was your Dad and wanted you to have the right to live in the house indefinitely then I would want that to be clearer in the will than it currently is.

I suspect that your Dad has some expectation that you will look after your nephew in some way as he has made provision for your nephew if you die but not if you don't - does this match with your perception?

If I was in your shoes, when my Dad passed away I would be executing the will as written, selling the house, sharing out the money and moving on with my life - anything else may result in years of arguments and bad feeling given that the post at the start of this thread doesn't suggest you get on well with your nephew.  Only you know your family dynamic but these things are usually best resolved at the time rather than left to fester.  If you really want to live with your nephew then (assuming that the two of you are the only beneficiaries) then there is nothing to stop you agreeing to own the house jointly (probably as tenants in common) and if necessary varying the will to that effect - at least that gets the execution of the will finished.

Please bear in mind that if you haven't finished executing the will by the time you die then the executor of your will will get to finish the job - they may not appreciate that, especially if they have to kick their cousin out of the house to do it.

Grumpy_chap

doodling said:

1. Section 7b is unusual as your Dad's grandchildren do not inherit (other than the sums in section 4) if their parent has died and they are under 18 when your Dad dies.  

I don't think that is what (7b) says:


Break that down:
The Residuary  Estate goes to the Testator's children that are living at the time of the Testator's death.  In equal shares.
If the Testator's children pre-decease the Testator, then the child(ren) of the pre-deceased child take the share (equally) that would have passed to the pre-deceased child of the Testator.
The part about the Testator's grandchild(ren) needing to have reached the age of 18 includes if the grandchild(ren) are under 18 at the time of the Testator's death (and the pre-deceased child part applying).  
"leaving a child or children living at my death who shall attain or have attained the ago of 18 years"
The grandchild still has to be living at the time of the Testator's death.
The grandchild has to reach the age of 18 (shall attain) after the Testator's death, or already be 18 (have attained) at the time of the Testator's death.

adeo said:

Grumpy_chap said:

In clause (3), the OP appears to be the only Executor and Trustee.

Clause (6) then makes provision for if both the ex-wife and the carer (the OP) have pre-deceased the father.

If clause (6) is invoked, who would be the Executor and Trustee?

Was this will written by a Solicitor?

Yes it was

I wonder what role exactly the Solicitors had in the drafting of the Will?
Did they write the Will, or simply witness the Will, or merely provide a safe-storage lodging for the completed Will?
I am not sure that a Solicitor would witness a Will they have not drafted, but it may be possible...

It is just there are some oddities in the Will.
Simple grammatical errors that make reading the Will rather difficult, for example (7b)
"leaving a child or children living at my death who shall attain or have attained the ago of 18 years"
would seemingly require a comma before and after "or have attained":
"leaving a child or children living at my death who shall attain, or have attained, the ago of 18 years"

Then there is Clause (4) which gives the £1k specified sums to four specific individuals:

• grandson
• grandson
• daughter-in-law
• granddaughter

Such a clause would normally make reference to how the clause varies (or does not vary) in the event of changes, which might include:

• more grandchildren
• spouse of second child of the Testator (the OP's sibling, parent of the nephew who is, presumably, one of the two grandsons referenced)
• divorce or separation so that the daughter-in-law is no longer in the family by the time of the Testator's death
• spouse of second marriage and any step-grandchildren
• etc

poppystar

I note the Will refers also to Capital Transfer Tax - wasn’t that replaced by inheritance tax in the 80s? Is this really a recent Will produced by a solicitor? 

Grumpy_chap

poppystar said:

I note the Will refers also to Capital Transfer Tax - wasn’t that replaced by inheritance tax in the 80s? Is this really a recent Will produced by a solicitor? 

Good spot - it was Nigel Lawson that made that change.

The stamp from the solicitor has an e-mail address, so assume it is not from a Will drafted before the mid-1980's.
Perhaps it was simply a stamp for the copy as a certified and true copy?

The OP really needs to understand what the Solicitors were engaged to do, by whom, and when.
This may all need to be led by the OP's father.
If the OP's father has lost capacity, then the issues around the Will cannot be resolved and the OP needs to find a way to implement the wishes of the Will as and when the appropriate time comes.  I hope, given the OP said the father has "recently" made him Executor, that the father has capacity and this Will can be clarified in suitable manner.

Robin9

@adeo   What was the date of the will ?

adeo

Robin9 said:

@adeo   What was the date of the will ?

20th April 2023