genou wrote:Where is CK when we need him?
Ibiza! Well I was until today, hence not having seen this until now.
At first it looked like a standard `lifetime residence' Will. This is common amongst people who have been divorced and remarried, the intention being to ensure that the children of the first marriage inherit a fair share of their parents' assets, but also that the surviving step-parent isn't forced to move out of the house because it's been left to the stepchildren.
However, although that was clearly the intention (otherwise why not just leave everything to the husband?) I must admit that the wording doesn't seem to achieve this.
Clauses 1 and 2 are straightforward. It's clause 3 that's the problem. It starts by setting up a conventional `trust for sale' in respect of the house. There is the usual direction to the trustees to sell it and to hold the [proceeds of sale] "upon the trusts hereinafter declared of and concerning the same."
So what exactly are those trusts? They aren't contained in 3(b), which is self-explanatory, saying the house can't be sold "during his widowerhood'' (which must mean as long as he's alive but unmarried) without his consent.
Neither are there any trusts in 3(c). This simply says that he can live in the house free of rent provided he maintains and insures it.
There is a trust in 3(d) - that if the husband remarries or no longer wants to live there the house is to be sold and the proceeds divided between him and the sons. But by definition, this trust can only operate during the husband’s lifetime.
Clause 4 doesn't contain any specific trusts. It's just a long-winded trust for sale clause that is supposed to relate to all the assets in the estate "except property otherwise disposed by this my Will". Does this include the house or not? I don't think it does, as up to this point the Will hasn't actually given the house to anyone. The reason for the inclusion of those words is to exclude specific legacies, and there aren't any.
So it seems to me that the house must form part of the residuary estate, simply because it hasn't been given to anyone else.
Clause 5 then deals with the residuary estate and says that if the husband survives for 30 days after his wife's death he cops the lot. The sons would only inherit if he died within that period.
I'm quite sure that this is not what was intended. It seems to me that the OP's mum meant for her sons to inherit the house on her husband's death and for her husband to inherit all the other assets in her estate, this being the usual arrangement. As I said earlier, if the OP's mum did want her husband to get everything including the house why would she bother making provisions for what was to happen to it during his life?
It seems to me that the person who prepared the Will forgot to include a `final destination clause' regarding the house, whereby on the husband’s death it would end up being inherited by the sons.
I think what may have happened is that the writer of the Will has assembled a series of clauses without working through them. For example, in clause 3(d) it says that if the house is sold during the husband's lifetime the sale proceeds are to be split 50/50 between him and the sons, but when providing for the possible death of one of the sons it says his children shall take "the share in the residuary trust funds" that his father would have taken. But this clause is not dealing with the residuary estate at all - simply the proceeds of sale of the house.
Admittedly, this is an opinion given without detailed research and consideration, but that's how it seems to me.
If my interpretation is correct then the sons would inherit nothing, and the whole tenor of the Will would suggest this is not what was intended at all.
I would therefore suggest that the OP goes back to the solicitors who prepared the Will and - without indicating any suspicion of fault - ask them to explain its workings (in writing) so that he and his co-executors can administer the estate properly. It'll be interesting to see their response.