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Joshua, Lawyer
Category: Law
Satisfied Customers: 26070
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I am the executor of a friends mothers will. She has recently

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I am the executor of a friends mothers will. She has recently died and I am in the process of applying for probate. The will divides the assets equally between her son, daughter and 6 grandchildren. The will stipulates that all beneficiaries should have attained the age of 25. Two of the grandchildren are 23. If I wanted them to have their legacy now what are the implications?
Hello and thank you for your question. I will be very pleased to assist you. I'm a practising lawyer in England with over 10 years experience.

May I ask do they want their legacies now please or is this your preference and not theirs?
Customer: replied 2 years ago.

They would prefer to have their legacy now but are not expecting it as they know the terms of the will. I am a bit concerned as to what to do with their legacies until they attain 25.

Thank you. One final question if I may does the will make a straightforward gift to them subject only to the age contingency of 25? i.e. there are no other conditions, and the will does not make the gift in the form of a discretionary trust? From what you ahave said I do not think this is the case
Customer: replied 2 years ago.

No the will simply states that each beneficiary receives an equal share subject to reaching the age of 25

Perfect - thank you very much.On that basis the legal position (whether the will says so explicitly or not) is that you hold the money for them on a "contingent trust", that is you hold the money for them on trust until they reach the age of 25 after which they become unconditionally entitled to it. Under the long established rule following the decision in Saunders v Vautier [1841], where all the beneficiaries are of 18 years or over, and they have full mental capacity and are absolutely entitled to all the trust monies but for the single condition of the age contingency as I understand is the case here, they may agree to put an end to the trust under the rule in the above case and demand the money from the trustee (you) once they are over 18.From your perspective as the executor / trustee, you are breaching the terms of the trust by advancing the money early so you need to give consideration to protecting yourself from a claim by them of breach of trust by advancing the money early (e.g. if they squander it and then later claim against you saying that if you had not breached the trust that they would not have squandered the money). I appreciate they are unlikely to make such a claim but it is technically possible.Accordingly to safeguard yourself you would do well to consider asking them for a formal letter requesting and requiring that you 1) advance the money to them immediately under the rights under Saunders v Vautier and 2) that they indemnify you in respect of any claims or costs arising from the breach of trust in your advancing the money to them before they have reached the age of 18. The letters do not have to be long providing the clearly contain these two components. They should be signed with their usual signature and include their full name and address.You can keep the letters with your estate files and in the highly unlikely event they were to later claim against you you would be indemnified. After 6 years no claim is possible so there is no need to keep the letters forever.I hope the above is of assistance? If you have no further questions for now I should be very grateful if you would kindly take a moment to click to rate my service to you today or just reply back to let me know if the above is helpful. Your feedback is important to me. If there is anything else I can help with please reply back to me I'd be very grateful
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