Legal help with understanding a last Will and testament

[jazzjazz]

Hi all,

I hope you can help; I have detailed the situation below.

My mother and father have not been on good terms for a number of years. They are married and have lived together since 1965 and intend to remain married. The marital home is in the sole name of my father.

Recently my father was diagnosed with an incurable disease; I estimate he has approximately 6 months left to live. My father advised that he has drawn up a Will which he claims takes care of my mother.

We have very limited funds hence unable to instruct a solicitor. I have detailed my father will below, can someone please tell me what this all means in simple terms as my mum wants to be certain of her position. Basically she does not want to be asked to leave her home and also wants to retain legal ownership of half of their marital house.


This is the last Will and testament of me
Name of Dad of address

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

2. I APPOINT Person 1 of address and my daughter Name of address to be Executors and Trustees of this my Will (“my Trustees'')

3. NO PERSON shall take any benefit under my Will unless he or she survives for twenty eight (28) days and any person not so surviving shall be deemed to have
predeceased me

4.a) IN THIS clause:
1] "Dwelling" means a freehold or leasehold house bungalow maisonette flat or
flatlet in the United Kingdom and any grounds belonging to it
2] "My house" means my house known as address together with its grounds or other the Dwelling which I may own or hold under a lease as my principal residence at my death
3] "The Contents" means all my furnishings and household effects
4] "The Beneficiary" means my wife name of address aforesaid

b] IF THE beneficiary survives me for 28 days I GIVE my house and the contents to my trustees ON TRUST to sell it subject always to sub clause [c] below

c] MY TRUSTEES shall allow the Beneficiary to reside in my House and to have the use of the Contents so long as the Beneficiary may wish and shall not exercise their power to sell except with the Beneficiary's written consent but without prejudice to the provisions of [f] below

d] AS OFTEN as the beneficiary in writing so requests my Trustees shall sell the
Dwelling currently held by them under this clause and with the net proceeds of sale acquire any other suitable Dwelling reasonably designated by the Beneficiary of which the total acquisition cost does not exceed those proceeds and shall hold it on trust with and subject to the powers and provisions of this clause BUT if on any such exchange there remains any surplus money in the hands of my Trustees they shall pay one half of the said money to my aforesaid wife Name of address aforesaid one half to be divided equally between such of my daughters Daughter 1 of Address aforesaid Daughter 2 of Address and Daughter 3 of Address as surviveme and if more than one in equal shares

e] THE BENEFICIARY shall at all times pay all outgoings in respect of any Dwelling currently held under this clause and observe and perform all of the covenants and conditions contained in any lease under which it may be held and keep it in good repair and shall keep it and the Contents insured comprehensively and to their full reinstatement value with Insurers approved by my Trustees and in the joint names of the Beneficiary and them



IF AT ANY time the beneficiary ceases to reside in the dwelling currently held under this cIause otherwise then through temporary absence or tor the purpose of making an exchange provided for in [d] above or gives written consent otherwise than for that Purpose or becomes permanently incapable of residing there or dies or remarries or fails for a period which my Trustees in their discretion consider unreasonable to perform any of the obligations mentioned in [e] above then the Beneficiary's rights under this clause shall end and my Trustees shall deal with the property :n accordance with the provisions of clause [4d] above

5. I GIVE the proceeds of sale of any house in which I am living at the time of
my death as follows:
i. ONE HALF to my aforesaid wife Name of address aforesaid
ii. ONE HALF to be shared equally between such of my aforesaid daughters
Daughter 1 of Address aforesaid Daughter 2 of Address aforesaid and Daughter 3 of Address aforesaid as survive me and if more than one in equal shares

6. IN MY Will where the context admits "my estate" shall mean:-

[a] All my property of every kind wherever situate;

[b] All my property of every kind wherever situate over which I have a general power of appointment;

[c] The money investments and property from time to time representing all such property

7. MY TRUSTEES shall hold my estate upon trust to retain postpone or sell it and will:
[a] Pay any debts funeral and testamentary expenses;

[b] Satisfy all gifts of specified property referred to in my Will or any Codicil;

[c] Pay all the gifts of money referred to in my Will or any Codicil;

[d] Deal with the residue of my estate (my "residuary estate'') as I now direct

8. MY TRUSTEES shall divide my residuary estate into two equal shares to pay
as follows:

[a] ONE SHARE to my aforesaid wife Name of Address aforesaid

[b] ONE SHARE to be split equally between such of my grandchildren grandchild 1 of address aforesaid grandchild 1 of aforesaid and grandchild 1 of aforesaid as survive me and if more than one in equal shares absolutely

9. ANY VESTED and absolute gift made by this Will to someone who is a minor may be paid or delivered by my Trustees to anyone who appears to them to be a Parent or Guardian of the minor or to the minor himself/herself if of the age of sixteen [16] years and the receipt of that person shall be a good discharge to my Trustees for the gift
10. THE standard provisions of the society of Trust and estate practitioners (1st Edition) shall apply with the deletion of paragraph 5 Section 11 (consultation with Beneficiaries) and 19 (Appointment and Retirement of Trustees) of the Trusts of
Land and Appointment of Trustees act 1996 shall not apply.


IN WITNESS whereof I have hereunto set my hand this DATE

This Will having first been read over
to the said dad who understands the
Punjabi language but has an imperfect
knowledge of and cannot read the
English language by me the undersigned
PETER in English and
having been truly interpreted to the
said dad by me the
undersigned Ash who
understands both the English and
Punjabi languages which reading and
interpretation were both done
in our presence when the said
dad appeared thoroughly
to understand this Will and to approve
the contents thereof was
SIGNED by the above named
dad
As his last Will in the presence of
us both present at the same time who
at his request in his presence and
in the presence of each other hereunto
subscribe our names as witnesses

[atticus]

Are you the daughter named as a trustee? Who is the other trustee - solicitor? Family friend?

In essence this will protects your mother's right to live in the house, or another house bought with the money if this one is sold. Everything else other than the house is to be divided - half to your mother and the other half to you and your sisters in equal shares.

Your mother is to pay for upkeep of the house and outgoings (rates, bills etc). Will she be able to afford to pay those things?

If the house is sold and no new one bought, your mother gets half, you and your sisters share the other half.

It would be sensible, when the time comes, to make sure you, your mother, your sisters, and the other trustee fully understand this document.

[dls]

Is he domiciled here and living here?
Is all his property here?

Please do not underestimate the possible complexities.
Do not underestimate the disadvantages (some of which are discussed by Atti above) of this way of proceedings.
See a lawyer. We really cannot advise.

The draft refers to a clause f - none yet exists.

[Millbrook2]

Are you the daughter named as a trustee? Who is the other trustee - solicitor? Family friend?

In essence this will protects your mother's right to live in the house, or another house bought with the money if this one is sold. Everything else other than the house is to be divided - half to your mother and the other half to you and your sisters in equal shares.

Your mother is to pay for upkeep of the house and outgoings (rates, bills etc). Will she be able to afford to pay those things?

If the house is sold and no new one bought, your mother gets half, you and your sisters share the other half.

It would be sensible, when the time comes, to make sure you, your mother, your sisters, and the other trustee fully understand this document.

Atticus I read it that the residuary estate was split 1/2 to wife & 1/2 between the grandchildren. I also read that the split 1/2 to wife and 1/2 to sisters in equal share was the sale proceeds of the house (excepting the provision to buy another one for the wife at which time any surplus would be split between the daughters).

Have I got it wrong?

[atticus]

No, not wrong.

[atticus]

It's not clear to me what happens to the house after the mother's death if it has not bens sold before then.

[theycantdothat]

It's not clear to me what happens to the house after the mother's death if it has not bens sold before then.

It would seem to be covered by clause 5.

What appears to be required is that the wife gets half of the house and the right to reside in it for as long as she wants. The draftsman has been presented with a problem which I am not sure he has solved technically. The wording gives the impression that it has not been taken from a precedent book. I think the draftsman needs to to be asked to look at the will again and consider, with a precedent book to hand, whether it needs redrafting.

Clause 5 refers to “any house in which I am living at the time of my death” which is not the same as “my house” defined as “my house known as […] or other the Dwelling which I may own […] as my principal residence at my death”. With respect to the draftsman, it is the sort of drafting which shows a lack of attention to detail and does not inspire confidence.