It has been assumed that the Will appoints as trustees of the life interest trust the persons who are appointed as executors and prove the Will. The executors appointed in a Will have authority to act as executors from the date of death (unlike the administrators of an intestate estate, who only have authority from the date of the grant of representation). See Practice Note: Personal representatives—authority prior to grant of representation. A legatee named in a Will does not have a beneficial interest in any property within the estate until the end of the administration period or an earlier transfer of the beneficial interest in that property to the legatee. See Practice Note: Beneficiaries' rights and remedies. The trustees therefore do not have any right to receive

If a trust is a discretionary trust, the trustees have discretion as to how to apply capital and income. In particular, a discretionary trust allows the trustees to accumulate income and income of such trusts does not belong to any individual until it is distributed to a beneficiary at the discretion of the trustees. For further guidance,

The rights of X with respect to the property will depend on all the circumstances. In particular, whether X's occupation arises out of an interest in possession in the property, or a tenancy or licence to occupy, is likely to determine whether he can allow other individuals to live with him in the property. It is important to note that not having a right to income is not per se, decisive of the issue of whether X has an interest in possession in the property. In some cases, a right to reside can amount to an interest in possession. Right to reside as an interest in possession For information on the rights of a beneficiary under a trust of land,

This Q&A is limited to considering the definition of occupation and what may constitute occupation. The starting point in such cases is always the proper interpretation of the Will. The court will determine what the provisions setting out the gift and the conditions on which it determines mean to a reasonable person having all the background knowledge which would have been available at the time the Will was made—Marley v Rawlings, Brooke v Purton. Absent any particular guidance in the Will, the court may refer to past decisions which consider the concept of occupation, but those decisions would not be binding.

Errors in a Will It is likely that the map will be incorporated in the Will by reference and therefore form part of the Will. There are two relevant provisions dealing with mistakes in Wills: • section 21 of the Administration of Justice Act 1982 (AJA 1982)—evidence as to the interpretation of Wills • AJA 1982, s 20—rectification of Wills There are three further relevant points: • this Q&A assumes that the testator is dead. A Will cannot be amended after it has been signed and witnessed. If the testator were still alive, they could either revoke the Will and execute a new one or execute a codicil with a correct map • if all the beneficiaries are adults with full mental capacity, they could execute a deed of variation correcting the

The question acknowledges that there is a difference between the role of executor and the role of trustee. The function of the executor is to get in the estate and to clear it of debts, duties, and testamentary expenses. Once that has happened, the executor holds the net estate on trust for the persons who are entitled to it. If the Will contains a trust, then the trustees of that trust are the persons to whom the executor should then transfer the assets. In practice, it is normal for the executors to be appointed also as trustees of any trusts arising under the Will, in which case, the division between the two roles can become

Any expenses incurred by the personal representatives between the date of the testator's death and the date of the distribution of the property or its net sale proceeds to the specific legatees must be borne by those legatees. Those expenses will

A testator of course can leave a legacy to anyone he wishes, including to minor children or remoter issue. Such legacies can either be vested, meaning that the minor is entitled to the legacy outright, or contingent, where a Will provides that the legacy is payable if and when the minor reaches adulthood or some other age. If the minor does not survive, the gift lapses and falls into the residuary estate. It is not specified in this Q&A whether the instant Will makes the gifts outright, but not to be released until the grandchild turns 21, or whether the gift is contingent on their turning 21. A gift to a beneficiary

Whether a legacy is contingent or vested will depend on the precise construction of the wording in the Will, in particular whether the word ‘upon attaining the age of 25’ creates a contingency (and this will depend on construction of the whole clause). A contingent legacy is a gift to which a beneficiary will not be entitled until the occurrence of a particular event, eg attaining a specified age or surviving another person. If the beneficiary dies before the event happens, their estate receives nothing and the gift will either be the subject of a substitutionary gift or, failing that, fall into residue. Contingent legacies can result in trusts arising. For example, see Precedent for an 18–25 trust in a Will: To a minor contingent

On the testator’s death, the legatee is aged 20, but the legacy in the Will is expressed to be contingent on the legatee attaining the age of 25. Assuming the legatee has the necessary mental capacity to do so, as well as being of full age, the legatee's interest is capable of being

For information on when grossing-up is required, see Practice Note: Grossing up and partly exempt estates, in particular, the section entitled 'When is grossing up required?' Note that for transfers on death, where the residuary estate passes entirely to non-exempt beneficiaries, grossing up is not relevant regardless of whether or not a specific legacy is tax-free

For the purposes of this Q&A, we have assumed that the merger took place prior to the death of the testator. Before considering the question of whether one of two shares ought to fail, it is important to consider the position of the bequests to the charities generally and whether the gifts fail in their entirety. The purpose of Charities Act 2011, s 311 is to save gifts to charities which merge prior to the gift taking effect. However, there is a general concern that the drafting of the legislation is flawed and will not save a legacy to a charity if the Will is drafted in such a way as to require the original charity to exist at the date