I have just been instructed in an Estate administration where there is a homemade Will which leaves the house for the wife to live in and then pass on trust when she dies. Unfortunately there are no instructions what this trust is. There is also no residuary clause so my view so far is this.
There is a partial intestacy of the residue, statutory legacy etc.
The trust potentially fails and the property passes into the residue as above. Do members think this is correct. If so then i expect if wife and surviving step children (estate is c£1m) agree then a DOV can be used?
Who are the executors/trustees? It might also be construed as a secret trust depending on what the testator had told the trustees during lifetime.
What are the family relationships like: are the beneficiaries likely to agree to any course of action?
The trust could be saved from failing by it being interpreted (potentially with the court’s blessing) as either a full life interest or right of occupation for the wife, with remainder to the resi bens.
I agree that there would be a partial intestacy of the residue, but I’m not sure whether things could be fixed by a DOV alone. That would only be effective for IHT/CGT, but would otherwise count as a gift by the original beneficiary. It’d be much better to make a Part 64 application or apply for rectification.
What is the exact wording? Are there any other clues as to what he meant by ‘on trust’?
Does it contain a revocation clause? If not, then perhaps parts of the previous will continue in force…