Deed of Variation/Trustee

I have a situation where there is a Will in place with several minor beneficiaries and two major beneficiaries (the deceased children aged 16 and 21).
The Will has appointed an Executor/Trustee.
The Will instructs the Executor to pay the minor beneficiaries with the residual estate and that the house is sold and proceeds held in trust until the “children” both attain the age of 25. The Executor is to maintain the “children” until 25.
The ex-husband of the deceased is still alive and both “children” have requested that he deals with their interests. The Executor is not providing reasonable maintenance and insisting to sell the house and hold the proceeds until they are 25.
The eldest is currently living in the house and doesn’t want to move out due to the financial costs. Both “Children” were dependents of the deceased at the time of death and have additional needs.
Is it possible to make a Deed of Variation (with court approval for the youngest) so that the minor beneficiaries are paid and then the deeds for the house are then signed over to the “children” or their father (the eldest is happy to appoint his father with LPA in terms of financial matters).
Ideally appoint the father as the trustee, but otherwise, once the house deeds are signed over the Executor/trustee need have any further involvement.
Is this a viable legal option.

Mark

You say you have a “situation” but fail to give any relevant details of the estate.

Are you acting on behalf of anyone, and if so whom?

Once you have ascertained who your client is please consider if anyone else might have a contrary interest, and so should be advised to seek alternative advice.

Hi Mark,

The Will instructs the Executor to pay the minor beneficiaries with the residual estate and that the house is sold and proceeds held in trust until the “children” both attain the age of 25.

Seem clear?

The Executor is not providing reasonable maintenance and insisting to sell the house and hold the proceeds until they are 25.

As the Will instructs? We assume the maintenance is an issue as the executor has no money?

I’m sure they’re are several options here, the executor in law holds the property and ought to follow the Will.

Richard Bishop
PFEP

If the house is the sole asset of the estate, the executor’s stance may be fully sustainable. However, if there are significant other assets in the estate, the executor’s stance may be less satisfactory.

Before any meaningful view could be taken, it would be necessary to know more about the nature and value of the assets of the estate.

A deed of variation could only be made if all the beneficiaries are legally competent, which would include not only the immediate beneficiaries but also those who would be entitled should both children fail to attain age 25. The fact that one of the children is currently aged 16 means they cannot give valid consent and, yes, an application to court under the Variation of Trusts Act 1958 would probably be required.

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals