Advice on Will please

[Binuchander]

I am currently helping a relative draft their Will with the help of a solicitor.

The wording in the draft will is (names removed):

5. I GIVE all my remaining property both real and personal whatsoever
and wheresoever (including any property over which I may have a general
power of appointment or disposition by Will) subject to and after the payment
of my debts funeral testamentary and administration expenses and any
inheritance tax payable in respect of my estate (herein called “my Residuary
Estate”) to my Trustees UPON TRUST as to both capital and income for such
of my said children (child 1) and (child 2) as are living at
the date of my death and if more than one in equal shares absolutely


Please can someone advise if this means that everything is left to this person’s 2 children’s in equal shares and what the relevance of the words UPON TRUST (in capitals) are?

[Pezza54]

Hi
Yes it does mean equal shares for the 2 children. Assets go into trust until a child reaches 18 and the trust is administered by trustees who have to follow instructions in the will
The will implies that if 1 child predeceases your relative the surviving child will inherit the deceased child's share. What if that deceased child had children of their own? The will doesn't cater for that but it can be drafted so it does. Would your relative not want the deceased's children to inherit?

[atticus]

If a solicitor is helping, ask him or her to explain.

Who are the trustees?

[Hagalout]

Regarding the wording of the will implying that should any child predecease the Testator the surviving child takes their share, I'm not too sure about that Pezza. In the case of "Hives v Machin" it was judged that a will worded the same did not have sufficient contrary intention to over ride S30 of the wills act. I myself have been involved with a will with the exact same wording and was advised by my solicitor that the predeceasing Childs share went to their own children.

[atticus]

s33 Wills Act 1837 : https://www.legislation.gov.uk/ukpga.../26/section/33

bequests to children who predecease the testator pass to their children.

[Pezza54]

These are my thoughts about the will clause in post 1:

If the trustees are not named in the will, the named executors should be regarded as the trustees

The clause could be made clearer that if any of the children predecease the testator leaving issue (grandchildren) then that child's share of the residuary estate shall pass to the issue in equal shares

If any of the issue are under 18 years of age their share shall be held in trust until they reach 18

[atticus]

Having regard to s33 Wills Act, the operation of the provision is not in doubt. This is why the OP should speak to the solicitor who drafted the will, to understand the will as a whole.

[Binuchander]

Thank you for the responses.

Below the section I copied and pasted in my original post, it does say:

'IF either of my said children shall die in my lifetime leaving a child or children then such child or children if and when they attain the age of 25 shall take equally among them the share of my Residuary Estate which their parent would otherwise have taken'.

So I assume that aspect is covered.

I appreciate the advice given - thank you.

[Pezza54]

Yes that makes it clear for a lay executor who may not be aware of the Inheritance Act

[Binuchander]

Thank you PEZZA54