Wills and Probate

My parents split in the 1970's and Dad remarried. His new wife had a son already. No further children were born. We believed they had made a will leaving all assets equally divided between both sides of the family. Later a new will was made leaving everything 50/50 but in a legal trust in the name of my stepmother. After Dad died we didn't see the will. Stepmother died this year and her will dissolves the trust and leaves it to her side only. It quotes setting aside Allhusen and another ruling. Is it worth fighting as the sums involved are substantial?

You would need to give a lot

You would need to give a lot more detail - particularly about the terms of the trust presumably created by your fathers will.

You can presumably see a copy of the will by using the online site

https://www.gov.uk/search-will-probate

Everything depends on the terms of his will.

Profile: retired barrister legal adviser with MOJ.

Will

I have used the government site to obtain copies of both wills. I'm concerned that, if challenged, we could lose everything and have to pay thousands extra in costs. Are there any particular terms that allow the overthrow of Dads will and different distinction of the assets of his trust? Sorry if I'm not very clear. 

You're as clear as mud. I'm

You're as clear as mud.

I'm sorry but without details I can't assist.

What does you dad's will say.

If it says you inherit that can't be changed.

 

 

Profile: retired barrister legal adviser with MOJ.

Wills

I could forward both wills or should I copy and paste here?

Its your dad's will that

Its your dad's will that seems to be the issue.

I don't expect you to copy and paste it as that would identify.

Just edit and anonymise it so that it refers to initials not names.

As in ... I leave £500 to X and £300 to Y. 

and remove reference to specific places.

 

Profile: retired barrister legal adviser with MOJ.

Dad's will

This is the Last Will and Testament of D.T.R

 

1. I REVOKE all former wills.

2. I APPOINT my wife L.E.R to be the sole Executrix and Trustee of my Will BUT IF she shall die before me or shall refuse or be unable to act then I APPOINT my daughter J.B.R and my step-son I.C.J to be the Executors and Trustees of this my will in her place (hereinafter called “my Trustees” which expression shall include the Trustees for the time being of this Will).

3. I GIVE all my personal chattels belonging to me at the date of my death to my said wife.

4. (a) THIS CLAUSE shall not take effect unless the gift to my wife by clause 6 of this my Will takes effect (or but for this clause would do so);

(b) IN THIS clause:-

(i) “the Nil-Rate Sum” means the largest sum of cash which could be given on the trusts of this clause without any inheritance tax becoming due in the respect of the transfer of the value of my estate which I am deemed to make immediately before my death

ii the trust period means the period starting with my death and ending 80 years afterwards (and that period is the perpetuity period applicable to this clause);

iii the beneficiaries menas my wife and any issue of mine and anyu issue of my wife who are alive at the start of or born during the trust period

iv my legacy fund trustees shall mean my wife and my said step son I.C.J or such other trustees or trustee for the time being of this legacy fund; and

c) I GIVE the nil-rate sum to my legacy fund trustees ON TRUST to invest it in exercise of the powers of investment given them by this Will or by law and to hold it and the property which currently represents it (the legacy fund) on the trusts and with and subject to the powers and provisions set out in this clause

d) DURING THE Trust period my legacy fund trustees (being at least two in number or a Trust Corporation ) may at any time or times:-

i) by deed or deeds revocable or irrevocable appoint that all or any part or parts of the income or capital of the Legacy Fund shall be held on such trusts (including discretionary and protective ones) in favour or for the benefit of all or any one or more of the Beneficiaries and with and subject to powers (including dispositive and administrative ones exercisable by my Legacy Fund Trustees think fit; and

ii transfer all or any part or parts of the income or capital of the legacy fund to the trustees of any settlement wherever established (whose receipt shall be a good discharge to them) to be held free from the trusts of this Will and on the trsuts and with and subject to the powers and provisions of that settlement but only if those trusts powers and provisions are such that (at the time of the transfer) they could themselves have created them under (i) above;

e) IN DEFAULT of and subject to any exercise of the powers given them by the preceding provisions;

i) during the Trust Period my legacy fund Trustees shall pay or apply the income of the legacy fund to or for the maintenance education support or otherwise for the benefit of such one or more of the beneficiaries as my Legacy fund trustees may in their absolute discretion think fit BUT with power (during the period of 21 years from my death) to accumulate such income or any part or parts of it (with power to apply the accumulations of past years as if they were income of the current year) AND with power (during the Trust Period) to resolve to hold the whole or any part or parts of such income as income on trust for any of the Beneficiaries absolutely; and

ii) on the expiry of the trust period my legacy fund trustees shall hold the legacy fund as to both capital and income on the trusts herineafter declared in clause 7.2 hereof;

f) MY LEGACY FUND TRUSTEES may be deed or deeds (and so as to bind their successors) wholly or partially release or restrict the powers given them by this clause;

g) ANY OTHER non-residuary gifts made by this Will or any Codicil to it shall have priority to this one;

h) I HEREBY declare that my Legacy Fund Trustees may exercise any of the powers under this clause even if a Grant of Representation has not yet been issued in respect of my estate;

5.1 THIS clause supplements the provisions of clause 4 of this my Will which contains a legacy of the Nil-Rate Sum;

5.2 Instead of satisfying that legacy wholly by the payment of cash (or by the appropriation of property to the Legacy Fund Trustees) my Trustees may;

i) charge all or any part of the Nil-Rate Sum on any residuary property which is (or but for this clause would be) given by this my Will or any Codicil to it absolutely to my wife; or

ii) require the Legacy fund trustees to accept in place of all or any part of the Nil-Rate sum a binding promise of payment made personally by my wife;

5.3 The Legacy Fund Trustees may lend any money currently held by them to my wife and they may join in creating a loan of any such property by them to my wife;

5.4 in amplification of the foregoing provisions:-

i) if my trustees exercise their power under 5.2 (i) above they shall (to the extent of the value at my death ot the property charged) be under no further liability to see that the legacy fund trustees receive the sum secured and if they exercise their power under 5.2 (ii) they shall be under no further liability to see that the Legacy Fund Trustees receive the sum promised;

ii) if my legacy fund trustees exercise their power under 5.2 (i) above they may give an assent of the charged property subject to the charge and no-one in whose favour the assent is made shall become personally liable for the sum secured;

iii) the Legacy Fund Trustees may require security to be given for any debt to be created by a promise within 5.2 (ii) above or by a loan within 5.3 and in relation both to such debts (whether or not secured) and to any debt to be secured by a charge within 5.2 (i) (all of which chall be debts payable on demand) they;

1) may (subject to the foregoing provisions) impose such terms (if any) as they think fit including terms as to interest and the personal liabiliry of the borrower and terms linking the debt to the Index of Retail Prices or otherwise providing for its amount to vary with the passage of time according to the formula; and

2) may subsequently leave the debt outstanding for as long as they think fit and refrain from exercising their rights in relation to it and waive the payment of all or any part of it or any interest due in respect of it;

And they shall not be liable if my wife is or becomes unable to pay the debt or a security is or becomes inadequate or for any other loss which may occur through their exercising or choosing not to exercise any power given by this paragraph;

Iv)_charges imposed under this clause may be fixed or floating

 

5.5 THE POWERS given by this clause are without prejudice to any other powers given by this Will or any Codicil to it or by the general law and are exercisable even though my Trustees and the legacy fund trustees may be the same persons and my wife may be among them (but they are not exercisable while my wife is the sole legacy fund trustee and any of the legacy fund trustees may exercise or concur in exercising all powers and discretion given to him by this clause or by law notwithstanding that he has a direct or other personal interest in the mode or results of any such exercise

5.6 THE Legacy fund Trustees shall have power to enter into any transaction concerning the Legacy Fund notwithstanding that one or more of the legacy fund trustees may be interested in the transaction other than as one of the legacy fund trustees and without any legacy fund trustee who is so interested being liable to account for any reasonable incidental profit provided that at least one of the legacy fund trustees who is not interested in the transaction other than as a legacy fund trustee approves the transaction

6. IF MY said wife shall survive me for a period of thirty days I give all the remainder of my real and personal property to her absolutely BUT IF my said wife shall not so survive me or shall fail to attain a vested interest in this my Will then the following clauses shall have effect.

7. MY TRUSTEES shall hold the whole of my estate on trust either to retain or sell it and:-

7.1 To pay debts duly and executorship expenses;

7.2 To hold the residue upon trust to divide it in two equal parts and to hold those parts and the income upon trust

7.2.1 as to one part thereof to divide it into ten equal parts and to hold those parts and the income upon trust.

7.2.1.1 as to eight parts for my said step-son I.C.J but if he shall die before me leaving issue living at my death such issue shall take and if more than one in equal share per stirpes the part which their parent would otherwise have taken.

7.2.1.2 as to one part for my step-granddaughter A.J

7.2.1.3 as to one part for my step-grandson D.J

7.2.1.4 if the trusts of any part or parts under this clause fail such part or parts shall be added pro rata to the other parts and this provision shall apply to both the original part or parts and an augmented part or parts

7.2.2 as to one part thereof for such my said daughter J.B.R my daughter G.A.R my daughter F.C.R my grandson A.N.S my grandson C.S my granddaughter V.R and my grandson G.R as shall be living a the date of my death and if more than one in equal share but if any of my said children shall die before me leaving issue living at my death such issue shall take and if more than one in equal shares per stirpes the share which their parent would otherwise have taken

7.3 If the trusts of either part of my residuary estate shall fail or determine then such part shall accrue to the other part of my residuary estate the trusts of which shall not have failed or determined to be held upon the trusts affecting such other part

8. THE STANDARD provisions of the society of Trust and estate practitioners (1st edition) shall apply to this will with the deletion of paragraph 5 and I direct that section 11 of the trusts of land and appointment of trustees act 1996 (consultation with beneficiaries) shall not apply hereto.

9. ANY OF my trustees may exercise his/her powers to enter into any transaction with my trustees even though his or her duty as a trustee conflict with his or her personal interest and even if he or she will benefit from such a transaction.

 

IN WITNESS whereof I have hereunto set my hand this 5th day of july 2005

SIGNED by the said D.T.R in our presence and by us his

And in the presence of each other

 

 

As I read it all your fathers

As I read it all your fathers children and all your step mothers children and herself benefit from a trust which started as the maximum inheritance tax free sum.

Your stepmother appears to have received anything else.

As I read it the trust ends after eighty years following your father's death - not on the death of your step mother.

I suggest it worth your while to get a trust lawyer to have a look at it as I don't claim this as a specialist area.

Profile: retired barrister legal adviser with MOJ.

Trust

thank you for your kind reply. My step mothers will revokes the trust leaving almost everything to her son. 

Where is the power to do

Where is the power to do that?

Profile: retired barrister legal adviser with MOJ.
Ask a UK Solicitor
27 UK Solicitors are Online Now
As a Question, Get an Answer ASAP
Get an Answer >

Who's online

There are currently 2 users and 2 guests online.

Online users

  • garrycm
  • holidayxc
sarginsons law link

User login

Navigation

twitter link facebook link
netlawman link