Father's will

[GoSeigen]

Those are my general thoughts; I would welcome comments on the following emboldened part of the will. It falls under the heading "distribution of the Estate" and deals with the case of ex-wife predeceasing my father:

"If my friend _EX-WIFE_ of ADDRESS is living on the date of my death I give devise and bequeath all the residue of my estate both real and personal whatsoever and wheresoever (including property over which I may have a power of appointment) after payment of my debts funeral and testementary expenses and subject to the general provisions of this my Will to her absolutely but If she does not so survive me I give devise and bequeath my estate as aforesaid to my Trustees** to sell call in and convert the same into money with power in their absolute discretion to postpone such sale calling in and conversion without being liable for loss or waste and to hold the remainder ["my residuary estate"] upon trust for my son GOSEIGEN of ADDRESS to distribute the same to the persons if living and in the manner set out in a memorandum of wishes which I have already prepared and signed and which will be found with this my will at my death and in so far as there may be such articles at the date of my death which are not subject to any directions contained in the said list I GIVE the same to the aforesaid GOSEIGEN absolutely."
** "Trustees" according to previous clauses would be me, GoSeigen

Now obviously ex-wife has survived him so this bold section doesn't have effect, but I am wondering what it all actually means if hypothetically she had died first -- this is what I as executor would have had to implement. e.g. Why are the two limbs worded so differently: in my estimation they should have been nearly identical... Should I be wondering about the skills of the drafter?

Firstly, can you confirm that you are in fact the executor? Usually, where the whole of the estate is left to one adult beneficiary they would be appointed as the sole executor. It's very unusual to appoint one executor then leave the whole estate to someone else, if only because - unlike the beneficiary - the executor has no incentive whatsoever to accept the appointment and take on the tedious task of administering the estate for no reward.

I think the matter has got a bit confused with some of the intervening posts. There are two scenarios from the will that I discussed:
1. The bold bit quoted above where hypothetically I would become executor and have to carry out what the bold text says. My problem with this is that the instructions there seem to make little sense to me.
2. A second scenario which would arise if, for example, the current executor and beneficiary viz. his ex-wife died before proving the will. In that case the will states that I would be executor, and as I said to Stewamax I know I could decline to act but my question is just about the competence of an advisor who would allow this sort of situation to arise in what is an extremely simple will. [I didn't quote the sections of the will relevant to this point 2]

Secondly, have you established that the memorandum of wishes exists? Assuming it does and it was found with the Will, as stated, then it forms part of the Will and must be admitted to probate along with the Will.

I have asked and she states that there is no memorandum. Only the four pages of the will that I have seen. I am assuming this is the copy of the will that she holds. Presumably I should demand that she search for another copy at my father's home? (Though my father said to me when we discussed the will that she holds the only copy.)

I have to say that it's a very stupid way of preparing a Will, as there must be a risk that the memorandum would be lost, and if the object of the separate memorandum was to try and hide the identity of the beneficiaries it's failed, as once admitted to probate the memorandum becomes a public document as part of the Will.

So are you saying the meaning of that bold part is that I as executor would have to refer to the memorandum to determine who the beneficiaries are? And if there is no memorandum then who are the beneficiaries in that section? It refers to "articles" being given to me but not the estate, but slightly earlier that the remainder [without defining that] to be held upon trust for me to distribute...??? I can't get my head around it and so am comforted that you used the word "stupid"!!

The relevant law is known as the incorporation of documents. A testator may incorporate another document into his Will by referring to it in his Will, as here.

There are three conditions which must be satisfied in order for a document to be incorporated by reference, these being as follows:

1. The document must be in existence at the date of the Will. This box is ticked, as the Will refers to it having been `prepared and signed'.

2. The Will must refer to the document as an existing document - tick.

3. The description of the document in the Will must mean that there is no doubt that the document is the document which is being referred to. This is why it's important that the memorandum was with the Will. If it was found separately there's a risk that it could be a replacement for the original, and therefore not valid.

The whole situation sounds very suspicious, and you may be inclined to investigate the circumstances in which the WIll was made, To do so you should try to obtain a copy of the file from whoever it was that made the Will.

This is quite a common tactic used by solicitors who are investigating suspicious Wills, and there's actually a specific type of letter known as a Larke -v- Nugus letter - it's named after a case of that name. There's a summary of the relevant law here (not an endorsement of the firm that prepared the feature) - https://www.footanstey.com/article/chal ... statement/

Thank you so much for your confirmation of this. My thoughts exactly and I was intending to instruct a lawyer to do this today. Have you dealt with this sort of situation yourself Clitheroekid? Assuming I should not attempt to do this myself?

GS

[didds]

By the way, I suspect that trying to unpick your father's state of mind at the time he signed the Will may be a hopeless task unless you have some fairly solid evidence to support you. I would focus on what the Will does say, and see if it can be lawfully challenged or altered, assuming that is what you want to do. At this point, ask an expert.

allied to which for understandable reasons, you don't know what the ex wife's will says upon her death having outlived your father. It _may_ leave such portion of your dad's estate as was bequeathed to her to yourself.

(Im just trying to look at all angles here. Id have the same concerns as you. And I appreciate this isnt a legal answer).

didds

[GoSeigen]

By the way, I suspect that trying to unpick your father's state of mind at the time he signed the Will may be a hopeless task unless you have some fairly solid evidence to support you. I would focus on what the Will does say, and see if it can be lawfully challenged or altered, assuming that is what you want to do. At this point, ask an expert.

allied to which for understandable reasons, you don't know what the ex wife's will says upon her death having outlived your father. It _may_ leave such portion of your dad's estate as was bequeathed to her to yourself.

(Im just trying to look at all angles here. Id have the same concerns as you. And I appreciate this isnt a legal answer).

didds

It may be even better than this -- it may leave both her and my father's estate to me as she has no children of her own. However, they are divorced. She is not my mother. She may remarry someone who has no interest in our family whatsoever. She may need expensive care. She may leave it all to a donkey sanctuary. None of those scenarios really represents what my father would have wanted.

Incidentally a few people have mentioned needing to ascertain my father's state of mind or prove he hadn't capacity. It is my understanding that if challenged in court, when sufficient doubt has been cast on the will it becomes the burden of the defender(s) of the will to prove its validity.

GS

[Clitheroekid]

Those are my general thoughts; I would welcome comments on the following emboldened part of the will. It falls under the heading "distribution of the Estate" and deals with the case of ex-wife predeceasing my father:

"If my friend _EX-WIFE_ of ADDRESS is living on the date of my death I give devise and bequeath all the residue of my estate both real and personal whatsoever and wheresoever (including property over which I may have a power of appointment) after payment of my debts funeral and testementary expenses and subject to the general provisions of this my Will to her absolutely but If she does not so survive me I give devise and bequeath my estate as aforesaid to my Trustees** to sell call in and convert the same into money with power in their absolute discretion to postpone such sale calling in and conversion without being liable for loss or waste and to hold the remainder ["my residuary estate"] upon trust for my son GOSEIGEN of ADDRESS to distribute the same to the persons if living and in the manner set out in a memorandum of wishes which I have already prepared and signed and which will be found with this my will at my death and in so far as there may be such articles at the date of my death which are not subject to any directions contained in the said list I GIVE the same to the aforesaid GOSEIGEN absolutely."
** "Trustees" according to previous clauses would be me, GoSeigen

Now obviously ex-wife has survived him so this bold section doesn't have effect, but I am wondering what it all actually means if hypothetically she had died first -- this is what I as executor would have had to implement. e.g. Why are the two limbs worded so differently: in my estimation they should have been nearly identical... Should I be wondering about the skills of the drafter?

Firstly, can you confirm that you are in fact the executor? Usually, where the whole of the estate is left to one adult beneficiary they would be appointed as the sole executor. It's very unusual to appoint one executor then leave the whole estate to someone else, if only because - unlike the beneficiary - the executor has no incentive whatsoever to accept the appointment and take on the tedious task of administering the estate for no reward.

I think the matter has got a bit confused with some of the intervening posts. There are two scenarios from the will that I discussed:
1. The bold bit quoted above where hypothetically I would become executor and have to carry out what the bold text says. My problem with this is that the instructions there seem to make little sense to me.
2. A second scenario which would arise if, for example, the current executor and beneficiary viz. his ex-wife died before proving the will. In that case the will states that I would be executor, and as I said to Stewamax I know I could decline to act but my question is just about the competence of an advisor who would allow this sort of situation to arise in what is an extremely simple will. [I didn't quote the sections of the will relevant to this point 2]

OK, although you haven't expressly said so I assume that the ex is appointed the sole executor if she survives, and that you're appointed sole executor if she doesn't.

As I said earlier, the Will is very poorly drafted, simply because not only is having a separate list of beneficiaries pointless, it's potentially dangerous if the list goes missing.

This appears to be the case here, and the fact that no memorandum appears to exist would have been a potentially disastrous outcome for the people that were intended to be the beneficiaries. On the other hand, it may well have been a great outcome for you!

Secondly, have you established that the memorandum of wishes exists? Assuming it does and it was found with the Will, as stated, then it forms part of the Will and must be admitted to probate along with the Will.

I have asked and she states that there is no memorandum. Only the four pages of the will that I have seen. I am assuming this is the copy of the will that she holds. Presumably I should demand that she search for another copy at my father's home? (Though my father said to me when we discussed the will that she holds the only copy.)

Again, I'm slightly confused by your references to a `copy' of the Will. Does she hold the original, and if not, who does? If the original is elsewhere then it may well be that the memorandum is with it.

So are you saying the meaning of that bold part is that I as executor would have to refer to the memorandum to determine who the beneficiaries are? And if there is no memorandum then who are the beneficiaries in that section? It refers to "articles" being given to me but not the estate, but slightly earlier that the remainder [without defining that] to be held upon trust for me to distribute...??? I can't get my head around it and so am comforted that you used the word "stupid"!!

Yes, the only way of knowing who the beneficiaries are is by reference to the memorandum. Another example of its bad drafting is that it seems that the memorandum doesn't just name the beneficiaries - it also, as you say, appears to name individual "articles", presumably specific bequests.

Thank you so much for your confirmation of this. My thoughts exactly and I was intending to instruct a lawyer to do this today. Have you dealt with this sort of situation yourself Clitheroekid? Assuming I should not attempt to do this myself?

Yes, I would think that every lawyer practising in this field will have written a Larke -v- Nugus letter at some point. However, it's definitely not something you should attempt to prepare yourself, as you need to know precisely what to ask.

I should add that the Will writer is not compelled to answer the request, and although Law Society guidance is that it should be complied with if he isn't a solicitor then he isn't governed by the Law Society.

Finally, as well as the information set out in the LvN letter it's also good practice to ask for a copy of the file relating to the making of the Will, as the various items of correspondence and attendance notes can be extremely useful in establishing exactly what went on.

[GoSeigen]

OK, although you haven't expressly said so I assume that the ex is appointed the sole executor if she survives, and that you're appointed sole executor if she doesn't.

Yes that's right.

I have asked and she states that there is no memorandum. Only the four pages of the will that I have seen. I am assuming this is the copy of the will that she holds. Presumably I should demand that she search for another copy at my father's home? (Though my father said to me when we discussed the will that she holds the only copy.)

Again, I'm slightly confused by your references to a `copy' of the Will. Does she hold the original, and if not, who does? If the original is elsewhere then it may well be that the memorandum is with it.

Sorry yes, if I'd given it a moment's thought I'd have realised there's only one original. I'm pretty sure that is the one the ex holds.

[I'm living in a place where it's common to carry around certified copies of all sorts of documents which are treated just like the original so I'm used to there not being much distinction!]

So are you saying the meaning of that bold part is that I as executor would have to refer to the memorandum to determine who the beneficiaries are? And if there is no memorandum then who are the beneficiaries in that section? It refers to "articles" being given to me but not the estate, but slightly earlier that the remainder [without defining that] to be held upon trust for me to distribute...??? I can't get my head around it and so am comforted that you used the word "stupid"!!

Yes, the only way of knowing who the beneficiaries are is by reference to the memorandum. Another example of its bad drafting is that it seems that the memorandum doesn't just name the beneficiaries - it also, as you say, appears to name individual "articles", presumably specific bequests.

Probably copied and pasted from another will...

Thank you so much for your confirmation of this. My thoughts exactly and I was intending to instruct a lawyer to do this today. Have you dealt with this sort of situation yourself Clitheroekid? Assuming I should not attempt to do this myself?

Yes, I would think that every lawyer practising in this field will have written a Larke -v- Nugus letter at some point. However, it's definitely not something you should attempt to prepare yourself, as you need to know precisely what to ask.

I should add that the Will writer is not compelled to answer the request, and although Law Society guidance is that it should be complied with if he isn't a solicitor then he isn't governed by the Law Society.

Finally, as well as the information set out in the LvN letter it's also good practice to ask for a copy of the file relating to the making of the Will, as the various items of correspondence and attendance notes can be extremely useful in establishing exactly what went on.

Thank you, points noted. I have been relying on the advice of my brother's [court appointed] deputy so far but I suppose it would be better to get my own solicitor to avoid conflicts of interest? When do I do that? Can the initial investigation be done for us jointly?

GS