I am administering an estate where there is a valid homemade Will. However the Will contains conflicting provision regarding distribution of the residue. The Will appoints A & B as executors.
The first clause dealing with residue states:
“I give all my real and personal estate to my Trustees upon trust absolutely for A & C in equal shares”
The second clause states:
“My Trustees A [B not mentioned] shall hold the residue on the following trusts…”. It then attempts to set out poorly drafted provisions for a discretionary trust, with C being the “Primary Beneficiary” and the only other beneficiary being A.
It seems impossible on the face of the Will to ascertain the testator’s intentions and as the Will is homemade, there is no further evidence of the his intentions. I assume in this situation that we have an intestacy as to the residue whole of the residue?
Mellor & Jackson
I recall that where a will seeks to dispose of residue twice, it is the first clause that applies, on the basis that once its terms are complied with there is nothing for the second clause to act on. I also recall it was probably a 19th century case that deal with the matter.
Despite the muddle between absolute and trust interests, the testator appears to have wanted to benefit A and C only. It may be that with the benefit of advice from counsel of 10 years standing, you would be able to treat A and C as the sole beneficiaries and allow them to direct how the estate should be distributed (possibly by them executing a deed of variation to verify the terms upon which they share the estate). I appreciate that if A and C would not be the only beneficiaries under intestacy, such a route could be disputed by those otherwise entitled, but the willingness to argue against such a distribution might be down to the strength of your counsel’s advice.
Whatever the outcome, in scenarios such as this I believe counsel’s advice is the safest way forward, assuming the amount in question is more than a couple of thousand pounds.