Understanding a will

Scottish_Dorset

Hello all,

My father-in-law died 4 years ago, he was divorced from my mother-in-law and had remarried.  His second wife was the executor of the will.  The grant of probate was £162K, the beneficiaries were his second wife, my husband and my husband's brother.  My husband and his brother were my father-in-laws only children.

My husband and his brother got £3k each under a Special Legacy.  They are also listed as named beneficiaries under the Absolute Residuary Gifts in the Administration of the Estate, along with the second wife.  I read this as my husband and his brother should have received a share of the residuary of the estate, as well as the Special Legacy.  The second wife has this money, she also has the house as this was in her name only.  The house is not in dispute.





 

I am not a solicitor but would really appreciate if we need to take this further with a solicitor.  I have attached copies of the sections of the will.

Many thanks, hope it makes sense!

Brie

So the premium bonds and ISAs should be going to his sons after paying for funeral expenses.  That's how I read it but I am not a solicitor.

I'm assuming the step mom isn't willing to discuss?  Legal fees will eat into anything pretty quickly.  

Scottish_Dorset

Brie said:

So the premium bonds and ISAs should be going to his sons after paying for funeral expenses.  That's how I read it but I am not a solicitor.

I'm assuming the step mom isn't willing to discuss?  Legal fees will eat into anything pretty quickly.  

Yes, and this was £3k each after the funeral expenses.  They've not approached their step-mother yet, looking to see if there is anything to pursue legally first.  It's what's remaining of the £162K probate that they're not sure about.  Should they also have received a third each of it.

Keep_pedalling

Clauses 9.1 and 9.2 seem to be in conflict as 9.1 gives the residual estate to his wife and 9.2 to his children with no mention of what % each receives.

Professional advice required on this one, unless the amounts are not worth the costs involved. 

Scottish_Dorset

Keep_pedalling said:

Clauses 9.1 and 9.2 seem to be in conflict as 9.1 gives the residual estate to his wife and 9.2 to his children with no mention of what % each receives.

Professional advice required on this one, unless the amounts are not worth the costs involved. 

Yes, that's how I read it.  The probate was valued at £162K so once the 2 x £3k were paid out roughly £155K.  Also there is a charge on my mother-in-laws property of 25% to go to her ex-husband on her death.  This is quite a chunk of money.  Even though my father-in-law has died, the charge may go to his estate.  So my husband and his brother could be entitled to a percentage of the 25% on the death of their mum.  So at this stage, trying to work out the correct reading and principles of the will.

p00hsticks

Keep_pedalling said:

Clauses 9.1 and 9.2 seem to be in conflict as 9.1 gives the residual estate to his wife and 9.2 to his children with no mention of what % each receives.

Professional advice required on this one, unless the amounts are not worth the costs involved. 

I think you mean 6.1 and 6.2, but apart from that I agree 

Keep_pedalling

p00hsticks said:

Keep_pedalling said:

Clauses 9.1 and 9.2 seem to be in conflict as 9.1 gives the residual estate to his wife and 9.2 to his children with no mention of what % each receives.

Professional advice required on this one, unless the amounts are not worth the costs involved. 

I think you mean 6.1 and 6.2, but apart from that I agree 

Whoop! Yes I did.

madbadrob

I was going to question point 6.1 and 6.2 as these contradict each other and would be the point of argument.  Others have brought this up also and therefore I can only agree with them that at this juncture it would be better to obtain legal advice from a solicitor.  

The question I have is where the monies in the estate come from.  Im assuming here that it is probably the value of a property.

Also the will itself who wrote this for the deceased?  I have never seen one written like this by a solicitor and my assumption again is that this is either a will kit or a will writer.  

You didnt include the final page with the signatures but I am assuming you are happy with who was the witness and that they all signed in the presence of each other

Rob

poseidon1

Not a particularly  brilliant piece of wills drafting since the only overt trust provisions arise in the event the sons predecease father leaving issue of their own  below age 25 . All other trust references are otiose.

 Possibly ( as suggested by madbadrob) a rubbish effort at a DIY will,  but if no solicitor ever involved at any stage  commencing from will drafting all the way to probate and subsequent estate administration by the sole executor this may be problematic for the sons in getting clarity.

In any event reading logically  what appears to have been intended we seem to have the following:

* Specific legacies to sons  - NSI premium bonds/ ISAs  less funeral expenses. Since sons only received £3k each that suggests only modest NSI holdings/ISA investments and/or expensive funeral expenses. The sons are entitled to see formal estate accounts ( if produced by a solicitor) to see confirmation of the relevant numbers leading to their net pay out. If anything other than funeral expenses deducted they will be entitled to reimbursement.

* Clause 6.1 Absolute gift of Residue to spouse - reasonably self explanatory

* Clause 6.2  Gift of Residue to Sons ( subject to trusts declared above) - a further example of bad drafting since no trusts previously declared. What appears to have been intended by the (useless) draftsman was a conditional gift of Residue to sons in the event father was not survived by his wife. Wife clearly survived so Clause 6.2 fails.

Clauses 7 onwards appear to be extracts from the STEP standard precedents of trust administrative clauses and definitions  so  of no assistance in gleaning the meaning and intentions of the preceding clauses.

According to OP the house ( in wife's sole name ) is not in dispute, so the only issue is how much of the deceased's net £162k estate was comprised of the NSI premium bonds and ISA investments  (less funeral expenses)?  One can only hope a solicitor was involved in obtaining the Grant  of probate and therefore has a professional obligation to satisfy  the sons ( via formal estate accounts) that they received what they were due.

  In the absence of ' professional' assistance on the behalf of the wife who can be interrogated, the sons may well have to threaten to obtain their own professional advice for clarification re their specific legacy. However, in my view they on a hiding to nothing if they have expectations with regard to a share of Residue. As indicated above, I don't see that that was intended.

Scottish_Dorset

The will was written by a solicitor, from a large established local firm.  The funeral was held during COVID times so small scale with no wake afterwards.  They way I read it is: Clause 6 is Absolute Residuary Gifts, with clause 6.1 and 6.2 listing the second wife and my husband and his brother respectively.  The terminology used in each clause is similar.  I'm assuming the £162K probate is bank accounts, cash etc.  

poseidon1

Scottish_Dorset said:

The will was written by a solicitor, from a large established local firm.  The funeral was held during COVID times so small scale with no wake afterwards.  They way I read it is: Clause 6 is Absolute Residuary Gifts, with clause 6.1 and 6.2 listing the second wife and my husband and his brother respectively.  The terminology used in each clause is similar.  I'm assuming the £162K probate is bank accounts, cash etc.  

My comment re poor drafting stands. 

However it is  beneficial a solicitor is in the mix. The brother's require detailed estate accounts (prepared by the solicitors)  showing the breakdown of the £162k. Their legacies were not a fixed pecuniary amount, so they are fully entitled to see the accounts or if none prepared require this be done.

As for the wording of the clauses, they are not quite identical. 6.1 specifically states to spouse 'absolutely'.  That word has a particular meaning in the  lexicon of wills drafting  and encompasses the entirety of the remaining estate with nothing left upon which clause  6.2 can then bite. This is  despite both clauses  falling under the heading 'Absolute Residuary Gifts'.

Had it been intended for Wife and Sons to collectively  inherit residue there would have been a single clause covering the three of them and that would have set out the shares in which each should inherit. As I said poor drafting.

Finally, it would not necessarily be in the brother's interest to push for declaring the will void for uncertainty. They could find with no valid will in place, the widow inherits all under intestacy  rules.