Complex Probate materialistic step mother

Bluenunn_in_the_north

Keep_pedalling said:

Bluenunn_in_the_north said:

Keep_pedalling said:

Clause ii. Would appear to leave leave his entire estate to his wife. The important word here is absolutely. Apon Trust does not mean it is placed in trust (note that term is also used the other clauses including the one covering funeral expenses).

if his share of his home had been left to his children with a life interest to his wife you would have a couple of clauses specifically instructing that in the will.

I am afraid it looks like he made the mistake of relying on her will to have his assets passed as he wished after her death. That may still happen but there is nothing to stop her leaving the lot to who ever she wishes.

I hear what you're saying but I don't see it like that.
If there's no bare trust for the property, why are trustees mentioned multiple times.

She has a right to occupy as set out in section 4.

Why is there a Form A restriction on the LR if she is the absolute beneficial owner?

A Form A restriction prevents her selling (TIC) without consent of all trustees.

"Form A (Restriction on dispositions by sole proprietor)

No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court."

Are you a probate lawyer or just offering your opinion?

Thanks

It was just my opinion, apart from the LR rep there are no professionals on this board. I did however post based on the first part of the will you posted and before you posted the other bit. My opinion now is that you need professional advice.

No problem. Who is the LR rep? Might be useful!


We are considering hiring a probate lawyer.

I might as well upload the last bit of the Will.

Thanks

Bluenunn_in_the_north

Here's a couple of more exerpts. Basically covers 90% of the Will, the  rest is rather minor import.

RAS

Please redacted all the personal details, urgently.

poppystar

Bluenunn_in_the_north said:

poppystar said:

Bluenunn_in_the_north said:

Keep_pedalling said:

Clause ii. Would appear to leave leave his entire estate to his wife. The important word here is absolutely. Apon Trust hdoes not mean it is placed in trust (note that term is also used the other clauses including the one covering funeral expenses).

if his share of his home had been left to his children with a life interest to his wife you would have a couple of clauses specifically instructing that in the will.

I am afraid it looks like he made the mistake of relying on her will to have his assets passed as he wished after her death. That may still happen but there is nothing to stop her leaving the lot to who ever she wishes.

I hear what you're saying but I don't see it like that.
If there's no bare trust for the property, why are trustees mentioned multiple times.

She has a right to occupy as set out in section 4.

Why is there a Form A restriction on the LR if she is the absolute beneficial owner?

A Form A restriction prevents her selling (TIC) without consent of all trustees.

"Form A (Restriction on dispositions by sole proprietor)

No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court."

Are you a probate lawyer or just offering your opinion?

Thanks

You say earlier on that the Will is confusing and lawyers have looked at it and thought so too. What exactly did they conclude? They will have been able to see the entire Will so are far better able to give a legally sound answer. All anyone can do on here is work with the information we have been fed during the post, call on our own experiences and give our views based on that. 

The fact that the property was held as TIC is separate to any Will. There have been cases on here before where the tenancy has been severed but the Will not changed or made to leave the property to anyone other than where it would have gone if held as joint tenants. 

Executors are trustees so a Will will mention trustees throughout. 

Hi,

Yes, we've had a few freebie sessions over the years, not gone to formal engagement.

All of them have said it is worded poorly and ambiguous. Some of them have given slightly different answers but they agree more digginng has to be done, potentially with litigation.

My sister who is a Trustee/Executor is getting on the case.

Thanks for the input. A TIC cannot be severed unless all Executors agree, correct.?

My sister hasn't assented.

It isn’t a matter of severing TIC after death, it is whether the property has been Willed to the other TIC (stepmother) or not. The Will is the important document. If there is a genuine life interest trust then your fathers half will eventually be distributed to who he wanted to get his half. If not, and everything is left to his wife, the TIC part becomes redundant and she would become the full owner regardless of whether they were TIC or not.

The section of the Will you gave referred to stepmother living there being at the ‘discretion’ of the executors - I’m not sure that can happen with a genuine life interest trust where there would be no discretion. Just my opinion, as said you need to follow professional guidance in what you do. 

Who drew up the Will? A solicitor? If so they should have kept notes of what your father intended which can be used to back up the Will if you can get hold of them. I get though that it would probably be seen as the executors being the only people who can get access to that. 

Whatever you decide I think you need to get this resolved as soon as possible, for your own peace of mind and so it is sorted before step mother dies and there is another Will and set of executors to deal with.

poppystar

Bluenunn_in_the_north said:

bobster2 said:

The term "held in trust" does not necessarily mean an enduring trust of some sort was established - you need to check the wording. When administering an estate all executors hold the assets in trust for the beneficiaries of the will (during the period of administration there is essentially a "will trust".

So a fairly typical will - in which someone leaves everything to their spouse - will still refer to the executors holding the assets in trust during the period of administration (i.e. the executors are the trustees).

Once all assets have been distributed to the beneficiaries - the will trust has been wound up.

We just fear that she may change her Will, dis-inherit us and potentially move out, downsize and pocket the difference in profit thus reducing my Dad’s half share of the property assest.

The part of the Will you have just uploaded (do remove the personal details) actually says that she can do exactly that in terms of moving to smaller property and being given ‘absolutely’ the difference. There seems to be no doubt in that section. I also suspect this would be taken as further evidence that there is no life interest trust. 

Bluenunn_in_the_north

RAS said:

Please redacted all the personal details, urgently.

Thanks very much

Bluenunn_in_the_north

poppystar said:

Bluenunn_in_the_north said:

bobster2 said:

The term "held in trust" does not necessarily mean an enduring trust of some sort was established - you need to check the wording. When administering an estate all executors hold the assets in trust for the beneficiaries of the will (during the period of administration there is essentially a "will trust".

So a fairly typical will - in which someone leaves everything to their spouse - will still refer to the executors holding the assets in trust during the period of administration (i.e. the executors are the trustees).

Once all assets have been distributed to the beneficiaries - the will trust has been wound up.

We just fear that she may change her Will, dis-inherit us and potentially move out, downsize and pocket the difference in profit thus reducing my Dad’s half share of the property assest.

The part of the Will you have just uploaded (do remove the personal details) actually says that she can do exactly that in terms of moving to smaller property and being given ‘absolutely’ the difference. There seems to be no doubt in that section. I also suspect this would be taken as further evidence that there is no life interest trust. 

Yes we had concluded that but thought a trustee could veto a move. We need clarity on whether there's a LIT. My sister wasn't on the ball at the time as executor.

The lawyer seemed to think she had a 'right to occupy' not a LIT.

Do you think the tenor of this Will favours whoever the surviving spouse is,  and is a bit lopsided in an equitable manner?

We feel left out in the cold.

Bluenunn_in_the_north

poppystar said:

Bluenunn_in_the_north said:

poppystar said:

Bluenunn_in_the_north said:

Keep_pedalling said:

Clause ii. Would appear to leave leave his entire estate to his wife. The important word here is absolutely. Apon Trust hdoes not mean it is placed in trust (note that term is also used the other clauses including the one covering funeral expenses).

if his share of his home had been left to his children with a life interest to his wife you would have a couple of clauses specifically instructing that in the will.

I am afraid it looks like he made the mistake of relying on her will to have his assets passed as he wished after her death. That may still happen but there is nothing to stop her leaving the lot to who ever she wishes.

I hear what you're saying but I don't see it like that.
If there's no bare trust for the property, why are trustees mentioned multiple times.

She has a right to occupy as set out in section 4.

Why is there a Form A restriction on the LR if she is the absolute beneficial owner?

A Form A restriction prevents her selling (TIC) without consent of all trustees.

"Form A (Restriction on dispositions by sole proprietor)

No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court."

Are you a probate lawyer or just offering your opinion?

Thanks

You say earlier on that the Will is confusing and lawyers have looked at it and thought so too. What exactly did they conclude? They will have been able to see the entire Will so are far better able to give a legally sound answer. All anyone can do on here is work with the information we have been fed during the post, call on our own experiences and give our views based on that. 

The fact that the property was held as TIC is separate to any Will. There have been cases on here before where the tenancy has been severed but the Will not changed or made to leave the property to anyone other than where it would have gone if held as joint tenants. 

Executors are trustees so a Will will mention trustees throughout. 

Hi,

Yes, we've had a few freebie sessions over the years, not gone to formal engagement.

All of them have said it is worded poorly and ambiguous. Some of them have given slightly different answers but they agree more digginng has to be done, potentially with litigation.

My sister who is a Trustee/Executor is getting on the case.

Thanks for the input. A TIC cannot be severed unless all Executors agree, correct.?

My sister hasn't assented.

It isn’t a matter of severing TIC after death, it is whether the property has been Willed to the other TIC (stepmother) or not. The Will is the important document. If there is a genuine life interest trust then your fathers half will eventually be distributed to who he wanted to get his half. If not, and everything is left to his wife, the TIC part becomes redundant and she would become the full owner regardless of whether they were TIC or not.

The section of the Will you gave referred to stepmother living there being at the ‘discretion’ of the executors - I’m not sure that can happen with a genuine life interest trust where there would be no discretion. Just my opinion, as said you need to follow professional guidance in what you do. 

Who drew up the Will? A solicitor? If so they should have kept notes of what your father intended which can be used to back up the Will if you can get hold of them. I get though that it would probably be seen as the executors being the only people who can get access to that. 

Whatever you decide I think you need to get this resolved as soon as possible, for your own peace of mind and so it is sorted before step mother dies and there is another Will and set of executors to deal with.

poppystar said:

Bluenunn_in_the_north said:

poppystar said:

Bluenunn_in_the_north said:

Keep_pedalling said:

Clause ii. Would appear to leave leave his entire estate to his wife. The important word here is absolutely. Apon Trust hdoes not mean it is placed in trust (note that term is also used the other clauses including the one covering funeral expenses).

if his share of his home had been left to his children with a life interest to his wife you would have a couple of clauses specifically instructing that in the will.

I am afraid it looks like he made the mistake of relying on her will to have his assets passed as he wished after her death. That may still happen but there is nothing to stop her leaving the lot to who ever she wishes.

I hear what you're saying but I don't see it like that.
If there's no bare trust for the property, why are trustees mentioned multiple times.

She has a right to occupy as set out in section 4.

Why is there a Form A restriction on the LR if she is the absolute beneficial owner?

A Form A restriction prevents her selling (TIC) without consent of all trustees.

"Form A (Restriction on dispositions by sole proprietor)

No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court."

Are you a probate lawyer or just offering your opinion?

Thanks

You say earlier on that the Will is confusing and lawyers have looked at it and thought so too. What exactly did they conclude? They will have been able to see the entire Will so are far better able to give a legally sound answer. All anyone can do on here is work with the information we have been fed during the post, call on our own experiences and give our views based on that. 

The fact that the property was held as TIC is separate to any Will. There have been cases on here before where the tenancy has been severed but the Will not changed or made to leave the property to anyone other than where it would have gone if held as joint tenants. 

Executors are trustees so a Will will mention trustees throughout. 

Hi,

Yes, we've had a few freebie sessions over the years, not gone to formal engagement.

All of them have said it is worded poorly and ambiguous. Some of them have given slightly different answers but they agree more digginng has to be done, potentially with litigation.

My sister who is a Trustee/Executor is getting on the case.

Thanks for the input. A TIC cannot be severed unless all Executors agree, correct.?

My sister hasn't assented.

It isn’t a matter of severing TIC after death, it is whether the property has been Willed to the other TIC (stepmother) or not. The Will is the important document. If there is a genuine life interest trust then your fathers half will eventually be distributed to who he wanted to get his half. If not, and everything is left to his wife, the TIC part becomes redundant and she would become the full owner regardless of whether they were TIC or not.

The section of the Will you gave referred to stepmother living there being at the ‘discretion’ of the executors - I’m not sure that can happen with a genuine life interest trust where there would be no discretion. Just my opinion, as said you need to follow professional guidance in what you do. 

Who drew up the Will? A solicitor? If so they should have kept notes of what your father intended which can be used to back up the Will if you can get hold of them. I get though that it would probably be seen as the executors being the only people who can get access to that. 

Whatever you decide I think you need to get this resolved as soon as possible, for your own peace of mind and so it is sorted before step mother dies and there is another Will and set of executors to deal with.

Hi,

Excellent advice thank you so much.


We will try and resolve it ASAP, my sister has let it drift. I have no power.

We need to establish if there's a genuine life interest, the language is ambiguous. I think it's an awful document, perhaps deliberately ambivalent.

What we intend to do is to, as well suggested by you, is go back to the solicitor and ask for clarification on my Dad's intended wishes and try and set up a deed of trust if possible.

In the past my SM has refused to let my sister see it, not sure if she can do that legally, so that raised red flags.

We will seek to contact the probate and Will solicitor quickly and if necessary hire a contentious probate lawyer.

Once again, heartfelt thanks for the contribution.🙏

Newly_retired

Whilst I think you are very wise to get a solicitor to explain exactly what the will means, my guess is that you could end up paying out a lot in legal fees for no gain. The mention of contentious probate suggests you have already made up your mind, but you really need to find out for certain what the reality of the situation is. Challenging the will or the SM is going to cost you possibly more than you might gain.

Bluenunn_in_the_north

Newly_retired said:

Whilst I think you are very wise to get a solicitor to explain exactly what the will means, my guess is that you could end up paying out a lot in legal fees for no gain. The mention of contentious probate suggests you have already made up your mind, but you really need to find out for certain what the reality of the situation is. Challenging the will or the SM is going to cost you possibly more than you might gain.

No we haven't made our mind up definitively about going down the contentious probate route as yet.

It was just a suggestion from the last lawyer we spoke to as a potential option if appropriate. The property is fairly valuable so ascertaining some clarity will be beneficial for all involved.

We are going to get my trustee/executor sister to contact the Will writing solicitor and the Probate one to see whete we stand prior to any formal litigation.

The lawyer said he'd make a formalreport foe a few hundred pounds.

Thanks again.