Q&As

If personal chattels are left in a Will to trustees to distribute in accordance with a written memorandum, how should the items be distributed of no memorandum is found following the testator's death?

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Published on LexisPSL on 01/09/2020

The following Private Client Q&A provides comprehensive and up to date legal information covering:

  • If personal chattels are left in a Will to trustees to distribute in accordance with a written memorandum, how should the items be distributed of no memorandum is found following the testator's death?

If personal chattels are left in a Will to trustees to distribute in accordance with a written memorandum, how should the items be distributed of no memorandum is found following the testator's death?

There are a number of different forms for such a trust of chattels.

Frequently, such a clause will include words which leave the chattels to the trustees as beneficial owners, with a request that they distribute them in accordance with any written wishes prepared by the testator before their death. In that case, the trustees can decide to disregard the terms of any memorandum of wishes and retain the items for themselves. If that is the case here, then the lack of a memorandum of wishes, would not render the legacy invalid. There would be no trust as such, because the trustees would receive the items beneficially.

However, although there is strictly no trust, there would be a moral (not legal) obligation which creates a precatory trust and if the beneficiaries were to pass them on to another recipient in accordance with the wishes, they would receive the inheritance tax relief in section 143 of the Inheritance Tax Act 1984 (IHTA 1984), if that gift were to be made within two years of the testator's death. The expression of the testator's wishes need not be in writing, but it should be in sufficiently certain

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