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Mum's Will

including wills and probate
CliffEdge
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Mum's Will

#232993

Postby CliffEdge » June 30th, 2019, 9:23 pm

I apologise that this is a long post but I am hoping for some advice regarding my mum's will, see below. Mum died a few years ago and my stepfather has continued to live in the house since her death.

The problem is that there seems to be a lack of clarity as to what happens if my stepfather dies in residence. Will the house then pass to mum's sons or some combination of sons and stepfather's estate?

We would be very grateful for any advice.

The Will follows:

----------------------

This is the last will and testament

of me XXX of ??? in the county of ??? which I make on this 16th day of June One thousand and ninety-nine revoking all former wills and testamentary dispositions made by me

1.

I appoint my husband STF and my sons AAA BBB and CCC (hereinafter called 'my Trustees' which expression where the context admits includes any trustee hereof for the time being) to be the EXECUTORS AND TRUSTEES of this my will

2.

I GIVE to my said husband STF all my household furniture and effects which shall be in or about Number ?? roadname townname countyname or such other house as I may reside in at my death

3.

(a) I GIVE my freehold house at Number ?? roadname townname countyname aforesaid or other house or flat in which my husband and I shall be residing at the date of my death to my Trustees UPON TRUST to sell the same and to hold the net rents and profits until sale and the net income from the proceeds of sale upon the trusts hereinafter declared of and concerning the same

(b) I DIRECT that the said house shall not be sold during the widowerhood of my said husband without his consent in writing and that during his widowerhood the following provisions of this clause shall apply

(c) UNTIL the said house or flat shall be sold my Trustees shall allow my said husband to occupy the same as his residence free from rent so long as he shall desire but upon the terms that he shall pay all rates taxes and other outgoings payable in respect thereof and keep the same in good repair and condition and insured in the names of my Trustees against such risks and in such manner as my Trustees shall from time to time require

(d) IF my said husband shall remarry or shall no longer desire to reside in the said house or flat then the said house or flat shall be sold and my Trustees shall hold the same or the proceeds of sale thereof upon trust

(i) as to one half thereof for my husband the said STF absolutely and

(ii) as to one-sixth part thereof for each of such of my sons the said AAA BBB and CCC as shall then be living and if more than one in equal shares absolutely PROVIDED ALWAYS that if any of them my said sons shall die before attaining a vested interest leaving a child or children living at my death such child or children shall take and if more than one in equal shares the share in the residuary trust funds which his her or their parent would have taken had he attained a vested interest

4.

I GIVE AND BEQUEATH all my real and personal estate except property otherwise disposed by this my Will or any Codicil hereto but including all property over which I may have a general power of appointment unto my Trustees upon trust to sell call in and convert to money such part thereof as shall not consist of money at such time or times and in such manner as they shall think fit with the fullest power to postpone the sale calling in or conversion of the whole or any parts of my said estate during such period as they shall think proper without being responsible for the loss and out of the moneys thus realised and out of my ready money to pay my funeral and testamentary expenses and debts and the legacies bequeathed by this my Will or any Codicil hereto and the tax on any legacies bequeathed free from tax and to invest the residue of the said moneys in any manner authorised by law for the investment of trust moneys with power from time to time at their discretion to vary such investments into or for others of the said authorised nature

5.

MY TRUSTEES shall stand possessed of such residue and the investments representing the same (hereinafter called "the residuary trust funds") in Trust for my said husband the said STF if he shall survive me by a period of thirty days absolutely but if he shall predecease me or fail to survive me for the said period then in Trust for such of them my said sons AAA BBB and CCC as shall be living at my death and if more than one in equal shares absolutely PROVIDED ALWAYS that if any of them my said children shall predecaese me leaving a child or children living at my death such child or children shall take and if more than one in equal shares the share in the residuary trust funds which his her or their parent would have taken had he survived me and attained a vested interest

IN WITNESS whereof I have set my hand to this my last will and testament the day and year first above written

Signed by the above named XXX

-----------------------

staffordian
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Re: Mum's Will

#232999

Postby staffordian » June 30th, 2019, 10:06 pm

I hope an expert will be along at some time, but my laymans interpretation is that the key clause is 5, which leaves everything to her husband as long as he outlives her by 30 days, which he clearly has.

I read it that the only circumstances in which the sons get anything (and that is a sixth each of the house, with the husband getting half of its value) is if the husband remarries or decides he doesn't wish to live in the house, at which point it is to be sold.

Edit: I assume the date the will was made is a typo, though if it's not, I don't know if it matters or not...

quelquod
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Re: Mum's Will

#233009

Postby quelquod » June 30th, 2019, 11:04 pm

Does ‘widowerhood’ cease upon death?

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Re: Mum's Will

#233037

Postby GoSeigen » July 1st, 2019, 7:45 am

That is not very clear is it? I think you should get legal advice, ideally from the solicitor who drew up the will. I would not rely on what lay people here say. However Clitheroekid who is a professional can be relied upon.

GS

staffordian
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Re: Mum's Will

#233038

Postby staffordian » July 1st, 2019, 7:46 am

Rereading my reply above, I see I'm not spelling out in detail my thoughts.

My conclusion was that the property is his unless he moves or remarried so death in residence means disposal of the property would be governed by his will, because of the terms of clause 5.

genou
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Re: Mum's Will

#233133

Postby genou » July 1st, 2019, 12:59 pm

staffordian wrote:Rereading my reply above, I see I'm not spelling out in detail my thoughts.

My conclusion was that the property is his unless he moves or remarried so death in residence means disposal of the property would be governed by his will, because of the terms of clause 5.


I want to disagree, but see next para for why I am not sure. Clause 5 reads to me to govern the residue in Clause 4 , i.e. the husband gets the moveable estate. As I read the will, he only gets an interest in the house if it is sold during his lifetime .

I am damned if I can see what is supposed to happen to the house when he dies. I would have thought the intention would be to pass it to the mother's descendants, but I can't see it in the document.

quelquod
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Re: Mum's Will

#233138

Postby quelquod » July 1st, 2019, 1:05 pm

genou wrote:I am damned if I can see what is supposed to happen to the house when he dies. I would have thought the intention would be to pass it to the mother's descendants, but I can't see it in the document.


Hence my earlier question

quelquod wrote:Does ‘widowerhood’ cease upon death?

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Re: Mum's Will

#233140

Postby genou » July 1st, 2019, 1:16 pm

quelquod wrote:
genou wrote:I am damned if I can see what is supposed to happen to the house when he dies. I would have thought the intention would be to pass it to the mother's descendants, but I can't see it in the document.


Hence my earlier question

quelquod wrote:Does ‘widowerhood’ cease upon death?


I don't see how it can continue after death ( and the will seems to agree, given that it assumes he can sign things while a widower ) , but I don't see how that speaks to the issue of what happens when he dies, if the house has not already been sold. I just can't see any provision in the will as to what happens.

Dod101
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Re: Mum's Will

#233142

Postby Dod101 » July 1st, 2019, 1:18 pm

If he dies without remarrying my guess is that, to be slightly facetious, he will no longer desire to live there, well he may desire but he will not be able to and so I think the provisions of Clause 3 (d) come in to play so that one half of the proceeds goes to his estate and the other half is divided between the three sons. I no nothing about the law however and I would strongly recommend seeking legal advice.

I am also a widower and if I die without remarrying I die as a widower and so I think widowerhood survives the death of the father.

Dod

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Re: Mum's Will

#233178

Postby genou » July 1st, 2019, 3:16 pm

Dod101 wrote:If he dies without remarrying my guess is that, to be slightly facetious, he will no longer desire to live there, well he may desire but he will not be able to and so I think the provisions of Clause 3 (d) come in to play so that one half of the proceeds goes to his estate and the other half is divided between the three sons. I no nothing about the law however and I would strongly recommend seeking legal advice.

I am also a widower and if I die without remarrying I die as a widower and so I think widowerhood survives the death of the father.

Dod


Where is CK when we need him? The husband can't be a beneficiary of anything after his death, so 3(d) is a non-starter in my view. I think that while you can die married / widower neither status survives death.

staffordian
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Re: Mum's Will

#233184

Postby staffordian » July 1st, 2019, 3:40 pm

genou wrote:The husband can't be a beneficiary of anything after his death, so 3(d) is a non-starter in my view. I think that while you can die married / widower neither status survives death.

My view too, but maybe it has a specific legal term we don't know about.

Logic suggests that a person has the status single, married, widowed etc. And if a person dies, that status surely dies with them.

scrumpyjack
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Re: Mum's Will

#233190

Postby scrumpyjack » July 1st, 2019, 3:52 pm

Not very well written bu I understand this to mean that the property is held for the husband to live in or can be sold. If sold per 3d half the value of it goes to him and the other half is split between the children. The proceeds of the house are held in trust and are not part of the estate’s residue.
This is not overridden by clause 5 because that refers to the residue (ie excluding the house which has already been dealt with).

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Re: Mum's Will

#233192

Postby Dod101 » July 1st, 2019, 3:55 pm

genou wrote:
Dod101 wrote:If he dies without remarrying my guess is that, to be slightly facetious, he will no longer desire to live there, well he may desire but he will not be able to and so I think the provisions of Clause 3 (d) come in to play so that one half of the proceeds goes to his estate and the other half is divided between the three sons. I no nothing about the law however and I would strongly recommend seeking legal advice.

I am also a widower and if I die without remarrying I die as a widower and so I think widowerhood survives the death of the father.

Dod


Where is CK when we need him? The husband can't be a beneficiary of anything after his death, so 3(d) is a non-starter in my view. I think that while you can die married / widower neither status survives death.


No but surely his estate could, although I concede that it would all be very unsatisfactory.

Dod

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Re: Mum's Will

#233193

Postby genou » July 1st, 2019, 3:58 pm

scrumpyjack wrote:Not very well written bu I understand this to mean that the property is held for the husband to live in or can be sold. If sold per 3d half the value of it goes to him and the other half is split between the children. The proceeds of the house are held in trust and are not part of the estate’s residue.
This is not overridden by clause 5 because that refers to the residue (ie excluding the house which has already been dealt with).


I think we can all agree with that. But there is no destination over specified ( that I can see ) if the house is still held at the husband's death, so I cannot see what is supposed to happen in that case. Maybe there is some English law assumption that I do not know.

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Re: Mum's Will

#233400

Postby dealtn » July 2nd, 2019, 1:49 pm

Still waiting for CK (or another with a legal background)...

but my reading is...

1) Here are some trustees and executors
2) Hubby gets (my) furniture in (our) house
3) a)Sell my home such that i.) 1/2 goes to hubby, and ii.) 1/2 (or 3/6 in 1/6 shares) to my children (with amendments should any child predecease me and have children of their own etc.) BUT b) don't sell it so long as hubby wants to live in it, assuming he doesn't remarry, unless he agrees to such a sale in writing, AND c) let him live in it rent free so long as that is the case.
4) Turn other stuff into cash etc.
5) hubby survives 30 days etc. (which he presumably now has)

Returning to the question, (which I have forgotten!), assuming hubby survives 30 days and didn't remarry or declare in writing a sale can take place, and now dies in residence. Hubby (or technically now his estate) gets the 1/2 share of the sale proceeds of the house, and the (presumably surviving) children each get their 1/6 share in the sale proceeds of the house.

Depending on the wording of the will of the now recently deceased stepfather the children might get more, but that is through his will, not the mothers.

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Re: Mum's Will

#233410

Postby Lootman » July 2nd, 2019, 2:20 pm

dealtn wrote:1) Here are some trustees and executors
2) Hubby gets (my) furniture in (our) house
3) a)Sell my home such that i.) 1/2 goes to hubby, and ii.) 1/2 (or 3/6 in 1/6 shares) to my children (with amendments should any child predecease me and have children of their own etc.) BUT b) don't sell it so long as hubby wants to live in it, assuming he doesn't remarry, unless he agrees to such a sale in writing, AND c) let him live in it rent free so long as that is the case.
4) Turn other stuff into cash etc.
5) hubby survives 30 days etc. (which he presumably now has)

Returning to the question, (which I have forgotten!), assuming hubby survives 30 days and didn't remarry or declare in writing a sale can take place, and now dies in residence. Hubby (or technically now his estate) gets the 1/2 share of the sale proceeds of the house, and the (presumably surviving) children each get their 1/6 share in the sale proceeds of the house.

Depending on the wording of the will of the now recently deceased stepfather the children might get more, but that is through his will, not the

Very good. Written in clear, plain English so you'd never get a job as a will writer. It's important for some reason that wills are written in some kind of weird archaic olde Englishe that nobody understands.

I do wonder if the clauses about the husband remarrying are enforceable. It seems almost spiteful to impose a condition that his home would be sold because he meet someone new. If so, I imagine the response would be that they either marry and keep it secret, or else they just cohabit and achieve the same thing anyway.

And of course if this new couple then have or adopt a child, it would get even more messy.

Dod101
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Re: Mum's Will

#233424

Postby Dod101 » July 2nd, 2019, 3:15 pm

I remarried after my first wife died and it caused a bit of family upset at the time. Stories about 'the wicked stepmother' and all that. So I can understand the mother, if it were her house, imposing that sort of restriction, to protect the feelings of the sons if nothing else. In fact when I remarried we decided that it would be sensible to move and find somewhere 'neutral' rather than new wife moving into the family home, just to try to get around that.

Anyway, dealtn's conclusion is the same as mine a few posts back but it would be interesting to get a professional's opinion on the matter.

Dod

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Re: Mum's Will

#233546

Postby genou » July 2nd, 2019, 9:35 pm

dealtn wrote:Still waiting for CK (or another with a legal background)...

Returning to the question, (which I have forgotten!), assuming hubby survives 30 days and didn't remarry or declare in writing a sale can take place, and now dies in residence. Hubby (or technically now his estate) gets the 1/2 share of the sale proceeds of the house, and the (presumably surviving) children each get their 1/6 share in the sale proceeds of the house..


Why does his estate have any entitlement? The will does not say that anywhere. It says the husband has the right to live in the house for life. It says he has the right to cause a sale , in which case he gets half the proceeds. It is utterly silent on what happens if he dies in residence.

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Re: Mum's Will

#233551

Postby Dod101 » July 2nd, 2019, 10:11 pm

I explained my reasoning a few posts back. We know that the Will is silent on the matter but that is the question. What is your answer?

Dod

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Re: Mum's Will

#233552

Postby genou » July 2nd, 2019, 10:26 pm

Dod101 wrote:I explained my reasoning a few posts back. We know that the Will is silent on the matter but that is the question. What is your answer?

Dod


I'm not sure if this is addressed to me. If the will is silent, and there is no legal assumption to rectify things , then to that extent it seems to me that the mother is intestate. That may well mean the husband inherits under English law. Regardless of how this pans out, if I had paid money for that will, I would not be a happy bunny.


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