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

Hi Paul, you replied to my post many months ago. This is still ongoing and we have a new issue. We were going to wait untill the youngest of the beneficiaries turns 18, however, this will be 2 years and 5 months after the death. We are aware that a deed of variation needs to be executed within two years of the death. June 25th 2022 being two years we feel it may not be enough time to get a court approval, so. The main thing the two major beneficiaries want is to remove/dissolve the trust. The executor is also the trustee and they are insisting that neither beneficiary will receive proceeds from the sale of the house until they have attained the age of 25. One is soon to be 22, the other will be 18 in October.
The beneficiaries want to sell the house at the most appropriate time and have access to the proceeds when sold.
This leaves me wondering if a deed of variation is maybe not the best solution, especially in light of the need for a court approval. Is it best to simply wait until the youngest beneficiary attains the age of 18 and then seek to dissolve the trust, assuming they have the right.
Any advice would be greatly appreciated.

Regards,

Mark

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You say, “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.”
Depending on the full trust wording, these are very clear instructions and the executor/trustee appears to be complying with the terms of the trust and with the duties and directions as set out in the trust.
The beneficiaries have no power to dissolve the trust or receive any of the proceeds until they are 25. If they are insistent, they will need to seek legal advice and potential court action.