Does anyone know of a case in which a High Court judge declared emphatically that a Will - in dispute over a number of contentious probate claims - did not contain a family trust? In fact, both wills, written in mutual terms and drafted professionally by a will writer for the elderly married couple, were almost entirely composed of the terms and provisions of a Family Trust. the three certainties are there in plain sight.
After the first death, the survivor engaged a solicitor to draft a new will in which she secretly set aside her half of the trust, but continued to reap the benefits of her life tenancy for another three years. The remaindermen were in this way disinherited. Perhaps this case is unique?
If the Trust of the deceased was set up to create a Trust on death, then the Trust was created, However, if the executors and Trustees did not perform their duties and then illegally changed the Will, then I can see why the Court would say the Trust was not created.
Far more information would be needed to comment further, (for instance was a Deed of Variation created following the death), but based on what has been said, it there may have been illegal activity.
Thanks for your comment. Yes I believe the trust was created by both parties. I was an appointed trustee and executor of the Will and Will Trust in each case. The only other trustee was the co-settlor who died. I was also one of two beneficiaries, but I knew nothing about my rights or obligations at the time. After examining some text books on Trusts and Equity, I have put together a breach of trust claim which I will be submitting as a litigant in person soon. Risky I know, but my solicitor and barrister (who ignored the trust) cleaned me out, so I have to rely on myself to set things right now.
You have not answered the question, was the Will changed by deed of variation.if so, then the Trust would not exist and in such circumstances the Judge was correct, the Trust did not exist.
If a deed of variation changed the Will so that no Trust was created, then there is no use in you trying to say that it was.
Anna
I am not aware of any legally recognised meaning of “family trust” [at least in the UK - some US states may differ, so beware false leads on the internet] although that term has often been used for marketing purposes by various commercial organisations, sometimes linked to will writers. Perhaps this could explain why the judge, and your own solicitor and barrister, did not refer to it? [although I feel they should have explained this to you at the time]
From your initial post I suspect that the main issue is not about a “family trust” [whatever one may think that is or isn’t] but may be a concept known as “mutual wills”.
In brief, if a couple agree to make wills in similar form, and one benefits on the death of the other then he/she should not go back on the “agreement”. As you might expect, there are a lot of legal cases about this - and there will have been a lot of costs incurred, sometimes by innocent mistake.
This forum cannot offer full advice on the particular circumstances of any claim, but I hope it may help if you feel able to consider and research matters further before launching your further claim.
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As Kevin infers, the interface between the law and its actual concepts as they stand and those commercialising its implementation is usually shrouded in a convenient semantic mystery concocted by the marketing industry. There is no such legal “thing” as a “Family Trust”, there are trusts which deal with “family” situations which are handled under the general law of trusts - here the developing concept of mutual wills - which are not contracts.
You may need to be clear as to what part of the overall sum of the mutual “trust funds” (already a misnomer) you believe yourself to have been excluded by the subsequent placing in trust of the survivor’s half share.Although you cannot be sure without seeing the wills, I don’t think she can settle her " share" of the trust fund in which she has an interest under the will without your permission, but others may have better ideas.
My apologies for the delay in responding. I am preoccupied with a breach of trust claim and neglected to check my email. Thank you for the question.
No deed of variation was made.The life tenant (survivor) of a reciprocal interest-in- possession trust with remainders, secretly made a new will shortly after her husband died. Three years later, after she died, the will emerged which revealed that a stranger to the trust had been appointed as a new trustee and - against all protocol- he was awarded the family estate. The ultimate beneficiaries: daughter and granddaughter of the owner of the entire estate were dispossessed.
the High Court judge ruled that he could see no trust in the disputed will, but it is there in plain sight and meets the three certainties and Land Settlement Act.
Kevin,
Thanks for your message and sorry about the delay in responding.
I provided the term “family trust” as a description rather than as a legal definition. Usually reciprocal life interest trusts in which the survivor of the two settlors benefits, falls within the category of a family trust. In this case the survivor secretly wrote a new will shortly after her husband died in order to disinherit her stepdaughter and step granddaughter. She was entitled to do so under the law of testamentary freedom but was not entitled to set aside a professionally drafted trust, particularly since she continued to benefit from it for another three years.
The judge decided that no Trust was present in the disputed Will. It is almost impossible to understand any reasoning in his decision. Almost the entire will was composed of a trust with terms relating to the three certainties.
The solicitor who drafted the new Will for the life tenant recognised the will trust made by the first settlor to die, as such. This is clear by the fact that she copied his terms into a TR1 form.
However, at the same time as she conducted the probate for his will, she drafted a new Will for the survivor which set aside all the survivor’s trust provisions. The survivor had no assets of her own. They all derived from her husband.
Furthermore the two will trust declarations were not unilateral. Together the two settlors consigned their assest to one Trust Fund.
I am lodging a breach claim shortly and hope the court of equity will see fit to provide a remedy or remedies.
Anna
You accept that the term “family trust” has no definition in law, yet seem to be pursuing a claim for breach of “trust” in what is actually a court of law [albeit hopefully does try to be equitable]. This concerns me as you might be risking very substantial costs penalties, with little hope of success, particularly as you do not seem to have received a clear explanation of the original court decision.
It is impossible for this forum to advise in detail as we cannot consider all relevant facts. However your comments do suggest to me that you might have potentially valid claims against the original will-writer and/or the solicitor who acted for you, rather than the eventual beneficiary and/or the trustees. Have you considered and/or researched this?
Good luck.
Kevin,
Thanks for your message. I will be lodging a breach of trust claim or claims at the Court of Equity. Its in Chancery but operates according to a different set of laws.
It doesn’t matter whether the trust is described as a family trust but when you have two reciprocal life interest trust declarations with remaindermen, it is invariably a family trust. Why not call it that? I can also call it an express trust and an inter vivos trust, or a property protection trust.
The judge did not provide a clear explanation as to why he failed to see a trust in the Will. He ruled that the document was a Will and not a Trust. That does not mean a trust wasn’t inscribed into the Will. It means the Judge failed to see it. He was wrong. Judges have a great deal of discretion in making judgements but they cannot rule against facts that are in plain sight.
The Will Writer was an honourable man and he did nothing wrong. I am grateful for him for drafting two impeccable Will Trust declarations. The solicitor who acted for me was ignorant and I may choose to sue him for negligence and malpractice but that will come later after I receive a judgement in my favour.
I am confident that the ruling will be in my favour. I am the only legally appointed trustee and I am also a beneficiary (one of two) who have been dispossessed. The individuals who committed breaches are - what is known as - trustees de son tort.
Kind regards,
Anna