Advice on understanding a will

Giant1

Hello, bit of a long post sorry but hoping someone can advise, sadly my mother in law passed away, she updated her will during lockdown as her son (my partner) had cancer. She told us that he was to get the house but if and only if he sells then the grandchildren will get a set amount of money each. Upon looking at the will she has stated the beneficiaries and amounts which is fine, and also stated that my partner get to keep the house and all assets with the right to postpone sale indefinitely,  however the solicitor has said the beneficiaries need paying regardless. MIL had no other money so the only way that can happen is if he sells the house (which goes against what his mom wanted) it appears the solicitor hasnt worded the will correctly. My point is, where do we now stand with this? We would always pay the grandchildren if the house was sold, thats not an issue at all, however if what the solicitor says is right and they have to be paid regardless,  my partner loses his inheritance.  The will contradicts itself so much, hope this makes sense? Any help or advice is greatly appreciated 

poseidon1

I think it will be very difficult for any forum contributor to comment sensibly, without seeing the exact wording of the Will.

Certainly from what you say  ( if accurate ) there appears to some kind of unusual  condition attached to your partner's gift which does not make  much sense. 

If the Will is hopelessly contradictory it might ultimately fail for uncertainty. One would need to consult another firm of solicitors to ascertain if this is the case, since the firm that drafted it cannot be trusted to be objective about their own drafting ( there are professional indemnity considerations at play if the firm was negligent). 

Mojisola

It depends on the exact wording of the will.

Usually, if a beneficiary has been left a property, that comes to them, free and clear.

If that means there isn't enough money to pay out to other beneficiaries, those clauses fail.

It would be worth paying for a second opinion.

She didn't make this solicitor the executor, did she?

Giant1

Thankyou, no her son is executor and trustee, it states i give devise and bequeath my real and personal estate to my trustee with full power to postpone such sale indefinitely without being liable for loss (words to that effect) its all such a mess, ive not slept with worry, her whole reason of leaving him the house was so he was debt free and mortgage free however the only way to pay the beneficiaries would be to either sell or take a loan out (which goes against what she wanted) 

doodling

Hi,

Giant1 said:

Thankyou, no her son is executor and trustee, it states i give devise and bequeath my real and personal estate to my trustee with full power to postpone such sale indefinitely without being liable for loss (words to that effect) its all such a mess, ive not slept with worry, her whole reason of leaving him the house was so he was debt free and mortgage free however the only way to pay the beneficiaries would be to either sell or take a loan out (which goes against what she wanted) 

Does it really say that?  The precise wording matters here so an exact quote from the will is needed to offer an opinion.

Has the solicitor said when the beneficiaries need to be paid (e.g. what could the beneficiaries do if the executor decided to pay them in 20 years time?)?

It looks like the deceased may be expecting her son, the executor, to rely on the clause allowing delay without liability to allow them to continue to live in the house.

I've always been wary of people suggesting using such clauses to create a trust as it doesn't feel like what they are intended for and I suspect that the solicitor is of the same opinion.

I would be getting an opinion from a second solicitor, unrelated to the drafting or execution of the will.

Note that if delaying execution of the will does work to achieve what you want, you might potentially be creating an inheritance or capital gains tax issue when the house is eventually sold in the future.

Giant1

Hi, so it says i give the following pecuniary legacies to (states names and amounts) then says I give devise and bequeath all my real and personal estate whatsoever and wheresoever unto my trustee upon trust to sell call in and convert the same into money (with full power to postpone such sale calling in and conversion of all or any parts thereof indefinitely or for so long as they in their absolute discretion shall think fit without being liable for loss and notwithstanding that the same may be of a wasting speculative or reversionary nature) that to me reads he gets the house as she wanted and doesnt actually have to sell, however the solicitor states the regardless of this the beneficiaries have to be paid,  it also has a sentence saying "any codicil hereto to hold the balance and all parts of my estate for the time being unsold and unconverted. Does this make sense? Im so confused by it all, will definitely have to consult another solicitor. It sounds like we are begrudging the grandchildren but we really arent, we just want clarity on it all. If we sold they would get there money but we just dont understand if they have to be paid regardless,  sorry for the long comment 

doodling

Hi,

You've still not accurately quoted the will.  Accuracy matters here, paraphrasing is pointless.

There seems to be no doubt that the grandchildren have to receive their inheritances.  The important question to be asking is when do they have to receive them?

I suspect that the solicitor is treating the delay clause in the will as something to protect the executor against being a bit slow at getting everything sorted out (e.g. a year or two delay) whilst the deceased thought that it meant that the executor could live in the house for 20+ years and then sort things out.

I don't know which is correct legally which is why you need advice from someone independent of the creation of the will.

Giant1

Thanks, ill get some advice off a different solicitor as this one has just been useless,  she actually said it sounds like the solicitor hasnt listen to the MIL wishes, turns out after some digging and finding other letters etc it was actually said solicitor who wrote the will (reason we saw her is because the company who wrote it now dont deal with wills and all passed on to her) however she worked for them at the time the will was wrote. Its only been 3 months since my MIL passed so we have time still, just didnt want to do things wrong and get into trouble etc

km1500

from what you have posted above

1. I give the following peccunary legacies..... these come first and therefore are acted upon first.

 2. she then gives all her real and personal estate to her son - this contradicts 1 unless she means the rest of her wealth after paying out 1

is there anything else in the will apart from what you have posted

poseidon1

Giant1 said:

Hi, so it says i give the following pecuniary legacies to (states names and amounts) then says I give devise and bequeath all my real and personal estate whatsoever and wheresoever unto my trustee upon trust to sell call in and convert the same into money (with full power to postpone such sale calling in and conversion of all or any parts thereof indefinitely or for so long as they in their absolute discretion shall think fit without being liable for loss and notwithstanding that the same may be of a wasting speculative or reversionary nature) that to me reads he gets the house as she wanted and doesnt actually have to sell, however the solicitor states the regardless of this the beneficiaries have to be paid,  it also has a sentence saying "any codicil hereto to hold the balance and all parts of my estate for the time being unsold and unconverted. Does this make sense? Im so confused by it all, will definitely have to consult another solicitor. It sounds like we are begrudging the grandchildren but we really arent, we just want clarity on it all. If we sold they would get there money but we just dont understand if they have to be paid regardless,  sorry for the long comment 

I am afraid your interpretation of the clause is incorrect largely due to misunderstanding the different roles your partner has as trustee/ executor and possibly beneficary, and unfamiliarity with legal terminology.

The part of the Will you have chosen to quote only relates to your partner's administrative powers/obligations as trustee in discharging his duty to  distribute the estate and meet the  beneficial entitlements under the will.

The expression 'upon trust to sell call in and convert the same into money..... etc' is a common legal term of art within wills which merely guides the trustee /executor as to the discretion they have in timing the sale of non liquid assets  ( stocks and shares, property, jewellery, art etc) pursuant to then meeting the beneficial interests.  It definitely does not identify your partner's entitlement to retain the house for his own benefit.


In this regard the only beneficial entitlements you have mentioned at this point are the pecuniary legacies, which presumably are the monetary gifts to grandchildren? Is your partner also in the list as receiving a pecuniary legacy? If not, you have not yet mentioned his specific  entitlement as a beneficiary of the will 

In this regard I would expect to see a further clause which  explains  what happens to residue of the estate after all pecuniary legacies have been met, and who is entitled to this residue. This could be your partner, but you have not provided the relevant wording for that part of the will.

In short more information required on the entirety of the Will wording.

Finally, is the house valuable enough to attract IHT? If so and there are no other assets to meet the liability, a sale maybe unavoidable.

Giant1

Thanks all, the house does not meet threshold for IHT we will get a solicitor to clarify things for us, our main concern however is that the mother in laws wishes were for her son to have the house, if he sells then the grandchildren get the money, but it appears the solicitor has not listened to the wishes of her, it is what it is, we are just frustrated that it goes against everything she wanted, she was deaf and practically blind and this was all done during lockdown,  ill try write up the full wording when i get chance but looks like the house will need to be sold from a lot of the answers here, i just dont understand how they can get it so wrong 😞 thanks for all your help