Understanding will - help please

Sanne

Hi All,

I have just downloaded the copy of a Will. Are you able to confirm my understanding of this please?

- he appointed two people as trustees and executors (one of them now - below referred to as <Trustee 1> - deceased but was alive at time of death)
- subject to the payment of my funeral expenses and debts I give devise and bequeath all my real and personal property whatsoever and wheresoever to the said <Trustee 1> if she is living at my death for her own use and benefit absolutely 
- If the said <Trustee 1> fails to attain a vested interest hereunder the succeeding provisions of this my Will shall take effect
- I give devise and bequeath all the real and personal property of or to which I shall be possessed or entitled at my death unto my Trustees upon Trust to sell call in and convert into money all such parts of the same as  shall not consist of money but so that my Trustees shall have full power to postpone such sale calling in and conversion as long as they shall in absolute discretion think fit without being liable for loss
- My trustees shall out of my ready money and the clear monies to arise from said sale calling in and conversion pay my debts and funeral and testamentary expenses and shall stand possessed of the residue of such monies (hereafter called my residuary estate) upon trust for such of my children <names> as shall be living at my death … <then goes on that if the children have died before their children will take the share if over 18>

As I understand it
- The person wanted <Trustee 1> to have everything
- If <Trustee 1> didn’t want it, it would then have been put into a trust and shared benefitting the children in equal parts. If any property was involved they could have postponed the sale if any of them had been living in it. (sorry I don’t understand fully how trusts work - I was never and will never be in a position to inherit - so this might be a rubbish explanation) 

Is that correct?

It’s unfortunate for the children that <Trustee 1> died less than a week after the Will writer passed away so the money now goes to <Trustee 1’s> beneficiaries without her having benefitted from it, but such is life…
 I’m just trying to understand his intentions which were probably for <Trustee 1> to have it and, if she had passed or they were no longer partners, his kids to have it. 

Thank you very much!

Keep_pedalling

Unless there is a clause saying that ‘trustee 1’ has to survive a certain time after then the bequest is now part of hi estate.

The use of the term trust here refers to the assets being held in trust during the administration of the estate not that the assets need to be put in trust for trustee 1’s children.

This is a case where professional advice should be sort to make sure this is handled correctly.

Sanne

Thank you very much for your quick response - no clause about surviving a certain time. Just shows the importance of updating these documents when events happen as I’m sure he wouldn’t have wanted the money to go where it now does, but it is what it is! 

Linton

Sanne said:

Hi All,

I have just downloaded the copy of a Will. Are you able to confirm my understanding of this please?

- he appointed two people as trustees and executors (one of them now - below referred to as <Trustee 1> - deceased but was alive at time of death)
- subject to the payment of my funeral expenses and debts I give devise and bequeath all my real and personal property whatsoever and wheresoever to the said <Trustee 1> if she is living at my death for her own use and benefit absolutely 
- If the said <Trustee 1> fails to attain a vested interest hereunder the succeeding provisions of this my Will shall take effect
- I give devise and bequeath all the real and personal property of or to which I shall be possessed or entitled at my death unto my Trustees upon Trust to sell call in and convert into money all such parts of the same as  shall not consist of money but so that my Trustees shall have full power to postpone such sale calling in and conversion as long as they shall in absolute discretion think fit without being liable for loss
- My trustees shall out of my ready money and the clear monies to arise from said sale calling in and conversion pay my debts and funeral and testamentary expenses and shall stand possessed of the residue of such monies (hereafter called my residuary estate) upon trust for such of my children <names> as shall be living at my death … <then goes on that if the children have died before their children will take the share if over 18>

As I understand it
- The person wanted <Trustee 1> to have everything
- If <Trustee 1> didn’t want it, it would then have been put into a trust and shared benefitting the children in equal parts. If any property was involved they could have postponed the sale if any of them had been living in it. (sorry I don’t understand fully how trusts work - I was never and will never be in a position to inherit - so this might be a rubbish explanation) 

Is that correct?

It’s unfortunate for the children that <Trustee 1> died less than a week after the Will writer passed away so the money now goes to <Trustee 1’s> beneficiaries without her having benefitted from it, but such is life…
 I’m just trying to understand his intentions which were probably for <Trustee 1> to have it and, if she had passed or they were no longer partners, his kids to have it. 

Thank you very much!

mmm I am not a lawyer but....

AIUI a "vested interest" is an absolute right to something.  When Trustee1 died one could argue they would not have acquired an absolute right to the property since for example it may have subsequently turned out that estate debts would have prevented any distribution to beneficiaries.

If I am correct the kids should get the whole estate rather than  Trustee1s beneficiaries, which presumably would have been the deceased's wish.

The executors should get proper legal advice..

One minor point: "Property" means all of the deceased's non-cash possessions.  So the trustees would have complete discretion on when to sell any of the estate, not just the house/land.  "Real property" is buildings and land.

Sanne

Thank you Linton! The second executor is - I assume, as probate/will aren’t online yet - the beneficiary of <Trustee 1> so he will most definitely not be interested in getting legal advice on this.

I guess the children could, but the cost of this would probably be prohibitive. (Not massive values involved, around £30k for each child).

Someone got very lucky there - the “property” mainly consists of a life insurance payout of one of the four children who passed a few months before their Dad (and a month after their Mum). 

He had their Mum as beneficiary, voiced just after her death that he wanted one sibling to have the money instead, but never managed to update the nomination before he passed. So the Trustees of the policy decided to pay it to their Dad, and now the money goes someone he didn’t really know. 

A prompt to not wait to update anything!

GrumpyDil

Formal legal advice would not be overly expensive but from what I can see there was no survivorship clause so the entire estate vested in trustee1 upon the the original teatator's death.

The clause
"If the said <Trustee 1> fails to attain a vested interest hereunder the succeeding provisions of this my Will shall take effect" 
would only have kicked in if trustee1 had predeceased the death of the testator.

As said previously shows the need to keep a will up to date.

The only other point is were the original testator and trustee1 married when the will was written and then divorced as that would change things (although as you reference partners I assume no marriage and that they were together at the time of death). 

Sanne

GrumpyDil said:

Formal legal advice would not be overly expensive but from what I can see there was no survivorship clause so the entire estate vested in trustee1 upon the the original teatator's death.

The clause
"If the said <Trustee 1> fails to attain a vested interest hereunder the succeeding provisions of this my Will shall take effect" 
would only have kicked in if trustee1 had predeceased the death of the testator.

As said previously shows the need to keep a will up to date.

The only other point is were the original testator and trustee1 married when the will was written and then divorced as that would change things (although as you reference partners I assume no marriage and that they were together at the time of death). 

Correct - they were never married but in a long-term relationship, together when the Will was written and still together at the time of death. 

To me, it was an obvious Will at the time; he didn’t have contact to his Kids until 10 years or so after it is dated and had no wealth (he moved into his partners property who remained the sole owner). The situation then changed and he re-kindled the relationship with his kids and they grew very close - he clearly just didn’t think to update his Will to reflect that (or maybe he thought he’d have nothing to pass on anyway so it wouldn’t matter).

Either way, it is what it is and the children can only move on from this.

Many thanks for your help again.