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Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 34105
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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I have another question relating to the holographic will that

Resolved Question:

I have another question relating to the holographic will that my father drafted for my late mother - (he is her ex-husband) in which he has got her to leave her real estate to "all of her descendants (5 children are beneficiaries) IN TRUST FOREVER" to be administered by three of us, her trustees.
We don't want the property in trust, we want to sell it and whichever of us that wishes to live there to buy it.
1) Will the wording "Forever" stand?
2) If we sell do we need all the trustees to agree, and not the majority?
3) Is father (currently an undischarged bankrupt) automatically a trustee as well?
4) Is the trust 'administratively unworkable?'
The trust's purpose is 'solely for the preservation and enlargement of the property' and any rent has to be ploughed back into the property. The problem is, the property in question doesn't even have its own building regs and is therefore not rentable - it is the stable/barn end of their marital home. The real house was sold to another brother to pay out my father when they divorced. There is a land registry split only.
Thanks for any help you can give.
Submitted: 3 years ago.
Category: Law
Expert:  Clare replied 3 years ago.
Hi
Thank you for your question.
My name is Clare
I will do my best to help you but I need some further information first.
Was this Will properly witnessed?
Clare
Customer: replied 3 years ago.

The will was properly signed and witnessed, a solicitor has confirmed that (although there is some question as to whether it was back dated, as my mother was terminally ill with cancer and it is dated a couple of months before diagnosis).


 


The solicitor wanted to ask counsel as to whether the "forever" clause would stand.


 


The solicitor had a previous (2004) will lodged with him, that he thought was the correct one - until this new will popped up.


I hope this helps.

Expert:  Clare replied 3 years ago.
Hi
Has anyone asked the witnesses when it was signed?
Clare
Customer: replied 3 years ago.

No, I can do though.The date is added in a different coloured ink, according to my sister, who saw the original before my father ordered the house safe to be broken into to retrieve this document. We have no idea if there was any codicil, if there was, he would have destroyed it.


I know that my father drafted the will for her, he had previously rang my sister and asked her to put pressure on my mum to change her will, which sister refused to do.



Just before my mother died, she told me in the hospital in the presence of my father and sister that she had "two wills, and you can choose between you which you use." My father said nothing. My sister and I told Mother that the law doesn't work like that; she had perfect comprehension, but was clearly naive in this aspect of the law, or my father had told her that one will did not cancel out the other.

Expert:  Clare replied 3 years ago.
Hi
Has Probate of this Will been obtained?
Clare
Customer: replied 3 years ago.

I know that my father is putting it into probate now. We did place a caveat but have removed this as it seemed that it would be counterproductive.

Expert:  Clare replied 3 years ago.
Hi
Given the doubts over this Will why did you feel it would be counter productive?
Clare
Customer: replied 3 years ago.

Let me try and explain what happened a little better: I was executor of will 2004, along with a brother and his wife. When my mother died we went to her solicitor to put this will into probate, as Father refused to show us his new will. We mentioned the likelihood of another will floating about and the solicitor entered a cautionery caveat. After that, Father did give us a copy of the new will, which we gave to the solicitor. The solicitor said that it was legal and valid, and all he could do was try and find out if the "forever" clause stood.


Meanwhile, another solicitor (friend) said that as it was legal and valid, there was nothing useful to be done until it went into probate. That is why we asked the caveat to be removed.


It is basically a will written and signed by my mother, witnessed by two witnesses, and with my father as sole executor. They divorced in 2004 because of his unreasonable, controlling behaviour of her, and it saddens me to see that he was back in there, doing what he did best. We strongly feel that this is not about him gaining anything other than control.


 

Expert:  Clare replied 3 years ago.
Hi
Did no one suggest speaking to the Witnesses to check the circumstances in which the Will was made?
C;are
Customer: replied 3 years ago.

I can speak to the witnesses. I know however that one witness said that he signed "a covered up document." He has told me that he did not know exactly what he was signing, which seems a little strange. I believe that my father must have instructed my mother to keep the creation of the new will secret from her family. I am not sure that this will help.

Expert:  Clare replied 3 years ago.
Hi
Were both witnesses together and was your mother also present when it was signed - this is important
Clare
Customer: replied 3 years ago.

I believe that both witnesses were together and that my mother was present. I can confirm this tomorrow by asking one of the witnesses directly.

Expert:  Clare replied 3 years ago.
Hi
That has to be your first issue.
The second revolves around undue influence on your mother and this is an area should consider carefully in view of the comment made by your father - and the comment made by your mother
However with regard to "forever' this actually means until 21 years after the death of the youngest child or grandchild currently living.
(this is because of the Rule Against Perpetuity relating to trusts)
Whether it is actually workable and binding does need detailed consideration of wording and context
however an overview is here
http://www.findlaw.co.uk/law/estate_planning/trusts/500130.html
Please ask if you need further details
Clare
Customer: replied 3 years ago.

Clare,


Thank you for clarifying this.


I have followed the link you supplied.



Just one more thing - in your opinion, if the trustees are all in agreement (we are) and are also beneficiaries, can we exercise the power to sell under the Trustee Act 1925?


 

Expert:  Clare replied 3 years ago.
Hi
How old is the youngest grandchild?
Clare
Customer: replied 3 years ago.

the youngest grandchild was born three days after my mother died. She is three months old.

Expert:  Clare replied 3 years ago.
Hi
All the beneficiaries - including the baby - need to be in agreement.
This is possible (given the parents speaking in behalf if the baby lol) but I would get counsels advice for certainty
Clare



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