Advice on wording

[willnewbie]

Hello, I have been using an advisor to help with a will, but I wanted to get more clarity and comfort on the wording below. We are blended family (each of us having 2 children from different marriages). The main asset is the house which we each own 50%. On death of one of us, the other can stay in the property, but partner who died's share goes to their kids in trust. Property can be sold/downsized, but the 50% share of the capital should remain with the partners' kids (in trust). On my death, my kids get their 50% share. When one of us is alive we don't want the 50% share to be used for income/living expenses for the other (need to retain capital in the trust). Does this wording accurately reflect that?



7. GIFT OF MY 50% SHARE OF THE HOME

7.1 I give my Property to my Trustees upon the trusts and with the powers set out in this clause:

7.2 My Trustees shall permit my Husband to occupy the Property as his main residence (or any replacement property acquired under this clause) for so long as he shall wish and while this clause remains in force, without paying rent but subject to:
(a) his paying all usual outgoings including utilities, council tax and insurance premiums (other than any life policy premiums) relating to the Property;
(b) his keeping the Property in reasonable repair and condition (fair wear and tear excepted); and
(c) his complying with any mortgage terms or lease covenants so far as they relate to the occupier.

7.3 My Trustees may (if they think fit), instead of or in addition to conferring a right of occupation, hold the Property or its net proceeds on trust to pay or apply the income thereof to or for the benefit of my Husband during his life for his maintenance, comfort and benefit (a “life interest”); my Husband is not to have any right to capital except as expressly provided below.

7.3A My Trustees may, with my Husband’s consent while he has capacity, sell any dwelling in which my Property is invested at such time and on such terms as they think fit.

7.3B My Trustees may apply such part of the net proceeds of sale of my beneficial share only as they think fit:
(a) to purchase, in the names of my Trustees and my Husband (or such other joint ownership structure as is appropriate), a replacement freehold or leasehold dwelling in England or Wales to be used as my Husband’s main residence; and
(b) to pay reasonable legal and other transaction costs relating to the sale and purchase.

7.3C So far as practicable, my Trustees shall structure any purchase of a replacement dwelling so that:
(a) my Trustees’ beneficial share in the replacement dwelling corresponds to the same proportionate share as my beneficial interest represented in the property sold; and
(b) my Husband’s own personal share (representing his own 50% and any additional funds he contributes) remains separate from the trust fund and under his control.

7.3D Any net proceeds of sale of my beneficial share which are not applied under clause 6.3B in purchasing or improving a replacement dwelling, including any balance remaining after such purchase, shall be retained by my Trustees as capital of the trust fund for my Daughters and:
(a) shall not be advanced, lent or paid to my Husband;
(b) shall not be used to meet my Husband’s general living expenses; and
(c) may only be used as capital for the benefit of my Daughters (or their issue) in accordance with clause 7.5.

7.3E During the continuance of my Husband’s right of occupation or life interest, my Trustees may pay or apply all or such part of the income arising from the whole of the trust fund (including income on any surplus proceeds retained under clause 7.3D) as they think fit for his benefit, but they must not advance or apply any capital for his benefit except as permitted by clause 7.3B.

7.4 My Husband’s right of occupation and any life interest shall terminate on the earliest of:
(a) his death;
(b) his permanent ceasing to reside in the Property or any replacement property as his main residence;
(c) my Trustees, with my Husband’s written consent (while he has capacity), determining these rights;
(d) such other [TRIGGER EVENTS] as I may specify (for example, remarriage or cohabitation for more than [X] months), if completed in manuscript or a later codicil.

7.5 Subject to the preceding provisions of this clause, my Trustees shall hold:
(a) my beneficial share in any dwelling then forming part of the trust fund; and
(b) all surplus proceeds and other capital retained under clause 7.3D, and any accumulated income,
for my Daughters in equal shares absolutely, subject to the substitutional provisions in clause 2.2.

7.6 My Husband shall have no power by will or otherwise to dispose of any part of my beneficial interest in the trust fund created by this clause.

7.7 Subject to the rights conferred on my Husband by this clause, my Trustees shall hold the capital and any accumulated income of the trust fund constituted by my Property (and any property representing it) for my Daughters in equal shares absolutely, subject to the substitutional provisions in clause 2.2.

8. GIFT OF RESIDUE

8.1 My “residuary estate” means all the rest of my estate both real and personal not otherwise disposed of by this will or any codicil to it.

8.2 I give my residuary estate to my Trustees on trust as follows:
(a) to pay my debts, funeral and testamentary expenses and any inheritance tax due on my estate; and
(b) subject thereto, to hold the residue for my Daughters in equal shares absolutely, subject to the substitutional provisions in clause 2.2.

9. ADMINISTRATIVE PROVISIONS AND TRUSTEE POWERS
9.1 My Trustees shall have all the powers of an absolute owner conferred by law, including powers to invest, sell, let, mortgage, insure and otherwise deal with trust property as they think fit.

9.2 Any statutory or express power allowing advancement of capital to a life tenant shall be read subject to clause 7.3D so that capital representing my Property cannot be advanced to my Husband other than for the purchase or improvement of a dwelling for his occupation under this will.

[Tofros]

Is the property owned as tenants in common? Is there a form A restriction on the title at the land registry? Have you defined the property to include any future replacement dwelling purchased before your death?

if you allow your trustees to apply income for husbands benefit, potentially, if the property is sold and he buys a replacement entirely from his own funds, your children could lose out on any future capital appreciation of the fund if the income is spent. Do you want to end his right of occupation if he ceases to provide a home for your children?

[atticus]

Have you considered asking your adviser to advise you on the meaning of all this - each clause individually and how it works as a whole?

You need to make sure that you end up with a document that accurately reflects your wishes. If you are told the wording is "standard" but they cannot explain it to you, then perhaps you have not chosen the best adviser.

[willnewbie]

Is the property owned as tenants in common? Is there a form A restriction on the title at the land registry? Have you defined the property to include any future replacement dwelling purchased before your death?

if you allow your trustees to apply income for husbands benefit, potentially, if the property is sold and he buys a replacement entirely from his own funds, your children could lose out on any future capital appreciation of the fund if the income is spent. Do you want to end his right of occupation if he ceases to provide a home for your children?

Hi, thanks for your quick response. We have been advised to make sure the property is owned as tenants in common - this will be executed shortly. As part of that, we will make sure Form A is completed.

Yes, property is defined as follows: “Property” means my beneficial 50% share in the property known as [ADDRESS HERE] or any property which is a substitute for it.

You make a good point on the income aspect. We will need to amend/remove that clause so that children don't lose out on future capital appreciation.

Suggested re-wording of the clause here:

"7.3E During the continuance of my Husband’s right of occupation or life interest, my Trustees must not pay or apply all or such part of the income arising from the whole of the trust fund (including income on any surplus proceeds retained under clause 7.3D) for his benefit, and they must not advance or apply any capital for his benefit except as permitted by clause 7.3B."

My children are grown up and have their own property and children. So no need to end right of occupation if he ceases to provide a home for the children.

[willnewbie]

Have you considered asking your adviser to advise you on the meaning of all this - each clause individually and how it works as a whole?

You need to make sure that you end up with a document that accurately reflects your wishes. If you are told the wording is "standard" but they cannot explain it to you, then perhaps you have not chosen the best adviser.

Thanks - yes, I suspect the issue is the advisor isn't the best, so am seeking some input on this forum. Any help/pointers are gratefully received.

[willnewbie]

For transparency and clarity, this is the entire will that was drafted (removing any personal information):

--

THIS IS THE LAST WILL AND TESTAMENT of me
WIFE of <ADDRESS> which I make this day of 2026

1. REVOCATION

I REVOKE all former testamentary dispositions made by me and declare this to be my last will.

2. DEFINITIONS AND FAMILY

2.1 My “Husband” means <Name>
2.2 My “Daughters” means <Daughter 1> and <Daughter 2> and, if any such daughter shall predecease me leaving issue who survive me, such issue shall take (per stripes) the share which their parent would otherwise have taken.
2.3 “Property” means my beneficial 50% share in the property known as <ADDRESS> or any property which is a substitute for it.
2.4 “Trustees” means the persons who are for the time being the trustees of the trusts declared by this will.

3. APPOINTMENT OF EXECUTORS

3.1 I APPOINT my daughter <Daughter 1> to be my Executor and Trustee.
3.2 IF MY said daughter is unable or unwilling to act as my Executrix and Trustee or if she dies before proving my Will then I make the following appointment instead:
3.3. I APPOINT my daughter <Daughter 2> of XXXX to be the Executor and Trustee of this my Will. I declare that in this Will the expression “my Trustee” means my personal representatives and the trustees of this will and of any trust that might arise under it.

4. PECUNIARY LEGACIES

ONLY IF my said husband <NAME> predeceases me I give the following pecuniary legacies:

1. To my XXXXX.
2. To my XXXXX

If any of the above gifts shall fail or determine then that gift shall pass into my Residuary Estate.

5. DEFINITION OF MY ESTATE

IN MY Will where the context so admits “my Estate” shall mean:
(i) All my property of every kind wheresoever situate.
(ii) All my property of every kind wheresoever situate over which I have a general power of appointment.
(iii) The money investments and property from time to time representing all such property.

6. ADMINISTRATION OF MY ESTATE

MY TRUSTEES shall hold my Estate upon trust to retain postpone or sell it and will:
(i) Pay any debts funeral and testamentary expenses.
(ii) Satisfy all gifts of specified property referred to in my Will.
(iii) Deal with the remainder (“my Residuary Estate”) as I now direct.


7. GIFT OF MY 50% SHARE OF THE HOME

7.1 I give my Property to my Trustees upon the trusts and with the powers set out in this clause:

7.2 My Trustees shall permit my Husband to occupy the Property as his main residence (or any replacement property acquired under this clause) for so long as he shall wish and while this clause remains in force, without paying rent but subject to:
(a) his paying all usual outgoings including utilities, council tax and insurance premiums (other than any life policy premiums) relating to the Property;
(b) his keeping the Property in reasonable repair and condition (fair wear and tear excepted); and
(c) his complying with any mortgage terms or lease covenants so far as they relate to the occupier.

7.3 My Trustees may (if they think fit), instead of or in addition to conferring a right of occupation, hold the Property or its net proceeds on trust to pay or apply the income thereof to or for the benefit of my Husband during his life for his maintenance, comfort and benefit (a “life interest”); my Husband is not to have any right to capital except as expressly provided below.

7.3A My Trustees may, with my Husband’s consent while he has capacity, sell any dwelling in which my Property is invested at such time and on such terms as they think fit.

7.3B My Trustees may apply such part of the net proceeds of sale of my beneficial share only as they think fit:
(a) to purchase, in the names of my Trustees and my Husband (or such other joint ownership structure as is appropriate), a replacement freehold or leasehold dwelling in England or Wales to be used as my Husband’s main residence; and
(b) to pay reasonable legal and other transaction costs relating to the sale and purchase.

7.3C So far as practicable, my Trustees shall structure any purchase of a replacement dwelling so that:
(a) my Trustees’ beneficial share in the replacement dwelling corresponds to the same proportionate share as my beneficial interest represented in the property sold; and
(b) my Husband’s own personal share (representing his own 50% and any additional funds he contributes) remains separate from the trust fund and under his control.

7.3D Any net proceeds of sale of my beneficial share which are not applied under clause 7.3B in purchasing or improving a replacement dwelling, including any balance remaining after such purchase, shall be retained by my Trustees as capital of the trust fund for my Daughters and:
(a) shall not be advanced, lent or paid to my Husband;
(b) shall not be used to meet my Husband’s general living expenses; and
(c) may only be used as capital for the benefit of my Daughters (or their issue) in accordance with clause 7.5.

7.3E During the continuance of my Husband’s right of occupation or life interest, must not pay or apply all or such part of the income arising from the whole of the trust fund (including income on any surplus proceeds retained under clause 7.3D) for his benefit, and they must not advance or apply any capital for his benefit except as permitted by clause 7.3B.

7.4 My Husband’s right of occupation and any life interest shall terminate on the earliest of:
(a) his death;
(b) his permanent ceasing to reside in the Property or any replacement property as his main residence;
(c) my Trustees, with my Husband’s written consent (while he has capacity), determining these rights;
(d) such other [TRIGGER EVENTS] as I may specify (for example, remarriage or cohabitation for more than [X] months), if completed in manuscript or a later codicil.

7.5 Subject to the preceding provisions of this clause, my Trustees shall hold:
(a) my beneficial share in any dwelling then forming part of the trust fund; and
(b) all surplus proceeds and other capital retained under clause 7.3D, and any accumulated income,
for my Daughters in equal shares absolutely, subject to the substitutional provisions in clause 2.2.

7.6 My Husband shall have no power by will or otherwise to dispose of any part of my beneficial interest in the trust fund created by this clause.

7.7 Subject to the rights conferred on my Husband by this clause, my Trustees shall hold the capital and any accumulated income of the trust fund constituted by my Property (and any property representing it) for my Daughters in equal shares absolutely, subject to the substitutional provisions in clause 2.2.

8. GIFT OF RESIDUE

8.1 My “residuary estate” means all the rest of my estate both real and personal not otherwise disposed of by this will or any codicil to it.

8.2 I give my residuary estate to my Trustees on trust as follows:
(a) to pay my debts, funeral and testamentary expenses and any inheritance tax due on my estate; and
(b) subject thereto, to hold the residue for my Daughters in equal shares absolutely, subject to the substitutional provisions in clause 2.2.

9. ADMINISTRATIVE PROVISIONS AND TRUSTEE POWERS
9.1 My Trustees shall have all the powers of an absolute owner conferred by law, including powers to invest, sell, let, mortgage, insure and otherwise deal with trust property as they think fit.

9.2 Any statutory or express power allowing advancement of capital to a life tenant shall be read subject to clause 7.3D so that capital representing my Property cannot be advanced to my Husband other than for the purchase or improvement of a dwelling for his occupation under this will.

10. INHERITANCE TAX AND ADVICE
10.1 I acknowledge that this will may have inheritance tax and care‑fee consequences. My Trustees and beneficiaries are strongly encouraged to seek advice from a suitably qualified solicitor or tax adviser in England and Wales in relation to the administration of my estate and the trusts created by this will.

11. STANDARD PROVISIONS

THE Standard Provisions of the Society of Trust and Estate Practitioners (2nd edition) shall apply. Section 11 Trust of Land and Appointment of Trustees Act 1996 (consultation with beneficiaries) shall not apply.

[Tofros]

I think there needs to be at least two will trustees. The restrictions on applying incone to husband I think could be incompatible with a life interest. May be a danger of being unclear which can lead to disputes about interpretation.

Have you been advised of the tax consequences of a life interest, which is at the discretion of the trustees vs under the will and the tax consequences of the right to reside? It’s quite technical but some types of post death trust or interest can result in the value of the trust property being added to the value of the estate of the beneficiary of the trust when they die and taking their estate over the IHT threshold. Also, in certain circumstances, the availability of the extra allowances for leaving a home to children can be lost where there is an intervening interest.

Have you used a proper solicitor or just a will writer?

[willnewbie]

I think there needs to be at least two will trustees. The restrictions on applying incone to husband I think could be incompatible with a life interest. May be a danger of being unclear which can lead to disputes about interpretation.

Have you been advised of the tax consequences of a life interest, which is at the discretion of the trustees vs under the will and the tax consequences of the right to reside? It’s quite technical but some types of post death trust or interest can result in the value of the trust property being added to the value of the estate of the beneficiary of the trust when they die and taking their estate over the IHT threshold. Also, in certain circumstances, the availability of the extra allowances for leaving a home to children can be lost where there is an intervening interest.

Have you used a proper solicitor or just a will writer?

Hi, thanks. This person is a will writer, and I suspect that's where the issues lie. Will flag the point on the number of trustees.

In terms of the tax consequences - it might be a moot point anyway, as the property is worth about Ł300k and savings won't take us over the IHT threshold.

[Frank1]

Clause 7.3 conflicts with 7.3E regarding trust income

[Frank1]

I suggest you write a letter of wishes for your trustees explaining in layman's terms how you want the trust to work.