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Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33954
Experience:  I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
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My cousin, has a will from her late husband which appears to

Resolved Question:

My cousin, has a will from her late husband which appears to deny her direct access to funds left on his death; instead, he set up a trust.

Could you scan through this will (5 pages, anonymised) and answer the questions:

1. what happens if she needs access to the capital but doesn't have the cooperation of the other trustees?
2. can the other trustees gain access to the capital without her consent?
3. please explain the effect of paragraph 11. What is the significance of the two-year period mentioned?
4. does this will seem fair? Should she contest it?

Thanks you!
Submitted: 3 years ago.
Category: Family Law
Expert:  Clare replied 3 years ago.
Hi
Thank you for your question.
My name is XXXXX XXXXX I will do my best to help you but I need some further information first.
Send it over and we will look at it
Clare
Customer: replied 3 years ago.

THIS IS THE LAST WILL AND TESTAMENT of me M of [address] which I make this day of Two thousand and twelve


1. I HEREBY REVOKE all former Wills and testamentary dispositions made by me



2. I APPOINT my Wife S of [address] aforesaid A of [address] and D of [address] to be the Executors and Trustees of this Will (and my Executor or Executors and Trustee or Trustees are hereinafter called "my Trustees")



3. I GIVE all my personal chattels as defined in Section 55(1)(x) of the Administration of Estates Act 1925 to S



4. I GIVE the following charitable legacies:-



a) the sum of TEN THOUSAND POUNDS (£10,000.00) to


M Parochial Church Council for their Fabric Fund PROVIDED ALWAYS that if this is not a separately constituted charity then my Trustees shall apply such sum for charitable purposes in connection with the Church at M as they shall within their absolute discretion decide



b) the of FIFTY THOUSAND POUNDS (£50,000.00) for such charities as my Trustees shall within their absolute discretion decide but having regard to any notes or wishes I may have left and any preferences expressed to S



5. FOR the avoidance of doubt I devise to S free of all taxes all my interest in or in the proceeds of sale of the Freehold property aforesaid



6. I GIVE all the residue of my estate (out of which shall be paid my funeral and testamentary expenses and my debts) and any property over which I have at my death any general power of appointment to my Trustees ON TRUST to sell call in and convert into money such parts as do not consist of money but with full power to postpone doing so for as long as they see fit without being liable for loss (and such estate and property and the property which currently represents it is referred to in this Will as "the Trust Fund")



7. MY TRUSTEES shall hold the Trust Fund upon trust:-



(a) to pay the income therefrom to S during her lifetime provided she shall survive me for a period of twenty eight days and without any right to such income unless she shall so survive and subject thereto



(b) upon trust for such of my nephews as shall survive me and if more than one in equal shares namely the said A N P and the said D provided always that if any of them shall fail to survive me but leave a child or children him surviving who shall attain the age of twenty five years then such child or children shall take and if more than one in equal shares the share which his her or their father would have taken had he so survived



(c) Notwithstanding the other provisions of this clause my Trustees may within their absolute discretion advance to or for the benefit of S such part of the capital of the Trust Fund at such times and as often as they shall think fit and without having regard to the interests of the remaindermen of the Trust Fund



8. ANY monies calling for investment under the terms of this my Will may be invested by my Trustees whether in their own name or in that of a nominee from time to time in any way in which they in their absolute discretion think fit (including in policies on the life of any person or persons) in all respects as if my Trustees were a sole beneficial owner of such monies and my Trustees may from time to time vary or transpose such investments



9. THE provisions of Section 31 (relating to maintenance and accumulation) and of Section 32 (relating to advancement) of the Trustee Act 1925 shall apply hereto with the following variations:-



(a) Section 31 shall have effect as if the words "my Trustees think fit" were substituted in subsection (1)(i) for the words "may in all the circumstances be reasonable" and as if the proviso at the end of subsection (1) were omitted



(b) Section 32 shall have effect as if the words "one half of" were omitted from proviso (a) to subsection (1)



10. I DIRECT that the income from my estate shall until sale be applied as if it were income from investments authorised by this my Will and that no reversionary or other property not actually producing income shall be treated as producing income and I FURTHER DIRECT that all my funeral and testamentary expenses and debts shall be paid out of capital no part of the income which shall actually be received after my death shall be apportioned and treated as capital and I FURTHER DIRECT that the personal representatives of any person who under the trusts hereof has a life interest in any property shall not be entitled to receive any part of any dividends rents or interest or money in the nature of income which shall actually be received in respect of such property after the death of the person having a life interest thereunder notwithstanding that the same shall be paid in respect of a period wholly or partly prior to the death of such person



11. MY TRUSTEES shall have power to allot appropriate partition or apportion (whether expressly or by implication) any investments money or other property forming part of my estate or subject to the trusts hereof in or towards satisfaction of any share or interest whether settled or not in any part of my estate and the income thereof in such manner as my Trustees shall in their absolute discretion (without the necessity of obtaining any consent) consider just according to the respective rights of the persons interested and even though one or more of my Trustees may be beneficially interested AND I DECLARE THAT within the period of two years after my death my Trustees shall be entitled to exercise the power conferred by this sub‑clause by valuing the property to be allotted appropriated partitioned or apportioned either as at the date of my death or as at the date of such allotment appropriation partition or apportionment as they shall in their absolute discretion think fit and any such allotment appropriation partition or apportionment shall be final and binding on all beneficiaries interested in my estate and none of my Trustees shall be liable for the consequences of any such allotment appropriation partition or apportionment



12. WHERE NOT in conflict with other terms of this my Will the standard provisions of the Society of Trust and Estate Practitioners (First Edition) shall apply with the deletion of paragraph 5 and:



(a) the power of appropriation may be exercised within the period of two years after my death by valuing the property to be appropriated either as at the date of my death or as at the date of appropriation as my Trustees shall in their absolute discretion think fit



(b) the power to pay income for the benefit of a minor confirmed by paragraph 6 shall also extend to capital



(c) Section 11 Trust of Land and Appointment of Trustees Act 1996 (consultation with beneficiaries) shall not apply



13. SAVE as otherwise provided for the purposes of this my Will a person will be deemed not to have survived me (or any other relevant person) unless he or she does so for a period of at least 28 days



IN WITNESS whereof I have hereunto set my hand to this my last Will the day and year first before written



SIGNED by the said M)


as and for his last Will in the presence of us )


both being present at the same time who at )


his request in his presence and in the )


presence of each other have hereunto )


subscribed our names as witnesses:- )




DATED 2012




WILL



-of-



M

Expert:  Clare replied 3 years ago.
Hi
How much is the estate worth?
How long have they been married?
What is the widow's financial position?
Clare
Customer: replied 3 years ago.

Hello,


 


The house is worth 600k. The fund is worth quite a lot more - I don't have the exact amount. They have been married 30 years. The widow is independently wealthy, and is living (frugally) off interest from both funds, but the other trustees have suggested she doesn't need interest from the late husband's fund.


Benet

Expert:  Clare replied 3 years ago.
Hi
So she got the property
Do her funds equal the funds held by the trust?
Clare
Customer: replied 3 years ago.

No, they don't. She has less.


B

Expert:  Clare replied 3 years ago.
Hi
Rough guess on how much less?
Clare
Customer: replied 3 years ago.

Let's say a third of the size. I don't want to ask too much of my cousin. Does the size and relative size of the funds matter? B

Expert:  Clare replied 3 years ago.
Hi
In determining whether or not sufficient provision has been made then yes I am afraid so.
To deal with your questions
1. Provided the reason for the request was reasonable (as in not to give away) she could apply to the Court
2. No that is not possible
3. This simply gives the Trustees a little more freedom when it comes to dealing with the assets that need to be liquidated to pay the specific legacies - and the two year part is tax related
4. This is harder - but frankly I think the provision is not adequate since it appears that she has less than half of the matrimonial assets - which on the face of it is too little
I hope that this is of assistance
Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33954
Experience: I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
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