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Where a Will and codicil leave a life interest and remainder in part of the same property to the same person, do the interests merge so that, on the testator's death, the life tenant/remainderman has an absolute interest in the relevant part of the property? If so, should the Will be rectified or varied or should the life interest trust be partitioned?
Q&As
Where the life tenant and the remainderman are the same person, the interests should merge. See Q&A: Is an immediate post-death interest created by a Will an absolute gift where the life tenant and the remainderman are the same person? If this was a mistake, can any action be taken to rectify this? Whether the life interest and remainder interest
Where a Will and codicil leave a life interest and remainder in part of the same property to the same person, do the interests merge so that, on the testator's death, the life tenant/remainderman has an absolute interest in the relevant part of the property? If so, should the Will be rectified or varied or should the life interest trust be partitioned?
Q&As
Where the life tenant and the remainderman are the same person, the interests should merge. See Q&A: Is an immediate post-death interest created by a Will an absolute gift where the life tenant and the remainderman are the same person? If this was a mistake, can any action be taken to rectify this? Whether the life interest and remainder interest have merged will depend on the precise construction
Where a Will appoints the partners in a firm of solicitors as an executor with a request that one of them proves the Will, but none of the partners wish to accept the appointment, should the deed of renunciation be executed by all of the partners or just one of the partners?
Q&As
Section 5 of the Administration of Estates Act 1925 (AEA 1925) provides that: ‘Where a person appointed executor by a will (i) survives the testator but dies without having taken out probate of the will; or (ii) is cited to take out probate of the will and does not appear to the citation; or (iii) renounces probate of the will; his rights in respect of the executorship shall wholly cease, and the representation to the testator and the administration of his real and personal estate shall devolve and be committed in like manner as if that person had not been appointed executor.’ The party to the deed of renunciation will depend on the exact words of the
Where a Will contains a clause which appoints as executors ‘the partners at my death in the firm of X’, but with no substitution in the event of another firm taking over the firm’s practice prior to the death, does the appointment fail if the firm has transferred its business to another firm before the death?
Q&As
For the purpose of this Q&A we have assumed that on the merger of the unincorporated practice with the incorporated practice, the unincorporated practice transferred its business to the incorporated practice and was then dissolved. If, at the date of the death of the testator, the
Where a Will contains a discretionary trust with the power for trustees to create other trusts, what are the pros and cons of resettling the trust fund as a vulnerable persons trust for the benefit of the deceased's grandson who is a potential beneficiary and receives Personal Independent Payment? What Precedents and other resources are available?
Q&As
This Q&A refers you to the following content that may assist you with your research: Practice Notes: • Tax and the personal injury trust • Taxation of trusts for disabled persons—income tax and CGT • Taxation of trusts for disabled persons—vulnerable person election • Taxation
Where a Will contains a gift of a property, to what extent is the beneficiary eligible for the council tax exemption? Who is responsible for paying utility charges during the administration of an estate?
Q&As
See Practice Note: Council tax which summarises all aspects of council tax and highlights the exemptions and discounts that can be applied. Practice Note: Payment of debts—solvent estate explains the term ‘solvent estate’ and considers
Where a Will contains a gift of residue to a minor, specified to be given 'absolutely upon attaining 18 years of age', and the minor dies before reaching that age, does the gift fail?
Q&As
Where a beneficiary survives the testator but fails to attain the age contingency specified in the Will clause, then the testamentary gift will often fail. However, the outcome will depend on the precise wording of the Will. In particular, whether a legacy is contingent
Where a Will contains a legacy of shares in XYZ Ltd but no substitute gift and there has been a share reorganisation by the time of the deceased's death so that the testator instead held shares in the holding company ABC Ltd, does the specific gift adeem?
Q&As
We refer you to Practice Note: Contents of Wills—legacies, which contains the following paragraph under the heading 'Legacies of stocks and shares': 'Although a legacy of stock or shares is prima facie a general legacy, this is a guide only and subject to any indications in the Will. For example, it is generally thought that the words 'now standing in my name' make the gift specific,
Where a Will contains a life interest trust, can a remainderman act as a trustee?
Q&As
No conflict rule The self-dealing rule states 'trustees should not allow their personal interests to come into actual or apparent conflict with the interests of the beneficiaries'. It is also connected to the obligation of a trustee not to make a profit for themselves by exploiting their appointment as a trustee, which by the fiduciary nature of the appointment, demands the highest standard of honesty and good faith to protect the interests of beneficiaries, see Practice Note: Trustees—self-dealing, unauthorised profits and conflicts of interest. Duty to act impartially A trustee must act fairly and disinterestedly when executing a trust and the exercise of his powers must not confer an advantage to one beneficiary (or classes of beneficiaries) over another. If there is an absence of an express or statutory power of appropriation, the trustee should not appropriate a share of income of the trust property to beneficiaries without first seeking the guidance of
Where a Will contains legacies to two named churches, to whom should the personal representatives distribute?
Q&As
The answer to this Q&A will depend on the exact wording of the Will and the current status of the churches named. In particular, the personal representatives will need to consider whether the recipient churches are clearly identifiable from the Will, the current status of the recipient churches, whether any trust has been created by the terms of the Will, whether the churches are registered charities or the legacies are clearly for charitable purposes and whether there is an officer
Where a Will contains no trust provisions save for a reference to the STEP Standard Provisions (1st edition) Will conditions, which provisions incorporate Trustee Act 1925, s 31 (as amended), must the trustees pay income to that beneficiary from age 18?
Q&As
STEP Standard Provisions and Section 31 of the Trustee Act 1925 (TA 1925) By paragraph 4 of the STEP Standard Provisions (1st edition): 'Sections 31 and 32 Trustee Act 1925 shall apply with the following modifications: (a) The Proviso to section 31(1) shall be deleted. (b) The words one-half of in section 32(1)(a) shall be deleted.' In fact section 31 of the Trustee Act 1925 (TA 1925) was amended after the date of the STEP Standard Provisions (1st edition) by section
Where a Will creates a trust for sale of the testator’s residence where a beneficiary only has a right to occupy the dwelling or any substitute dwelling, what are the trustees’ duties when the right to reside comes to an end?
Q&As
In answering this Q&A, we have assumed that the testator died after the commencement of the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996). Under TOLATA 1996, s 4, the general rule in relation to a trust of land