Can anyone assist of the next steps. I have a problem will (not prepared by our firm) which leaves the estate on various discretionary trusts of percentage shares, most of the shares are 12.% of the estate and one (which i assume is incorrect) is of 25% which when all shares are calculated gives 112.5% total shares rather than 100%.
To add to this within the document it the numbering goes from 5.6 to then 7.2 and then back to 5.7. I know this will be investigated further by the probate registry.
Can you advise on the next steps here, would it be to request the file notes and then how to proceed to resolve this.
The will also appoints executors and trustees of the estate but then appoints individual trustees for the small individual trusts within the will, whos duty is it to deal with these issues i understand the trustees and beneficiaries will have to resolve?
Yes, a review of the will drafters file and instructions should be the starting point.
It may be the beneficiary in question is to receive 2 shares, but the shares should be ninths, not eighths.
I wonder if the “7.2” might perhaps be part of the text of clause 5.6 and, for some reason the document has treated is as a new clause number? I have seen that happen a couple of times, usually if the drafter has been fiddling a lot with the wording and inserting other clause references.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
I will obtain the notes if any are held.
Yes there are 7 gifts of 12.5% and one of 25%. I see your point regarding the shares but if there are indeed no file notes how would this be determined? would a deed of variation be able to rectify this or is it a matter for the court.
A further issue i have and i wonder if you could clarify is that the beneficiaries of these individual trusts are the beneficiary, his children and remorter issue living at death or born thereafter during the trust period of 125 years.
To rectify this i assume all beneficiaries must consent but if the trust includes remorter issue born after death also how can this be resolved?
Clearly the intention was the there should be 8 shares of 12.5%, so only the beneficiaries of the 25% need to agree to the amendment. As there are minors among them, it may be possible for the parent to agree to indemnify the executors if the value of the 1/8 share is not too high.Otherwise an application to the court seems the only way forward.
Definitely get the file. The Administration of Justice Act might help you here.
Section 20(1) of the Administration of Justice Act 1982: If a court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions, in consequence — (a) of a clerical error; or (b) of a failure to understand his instructions, it may order that the will shall be rectified so as to carry out his intentions.”
@paul sanders - Microsoft Word can do a pretty good job of cocking up paragraph numbering all on it’s own!!
If we rectify this with the beneficiaries do i not have an issue because of the way the will is worded ie the beneficiaries of these individual trusts are the beneficiary, his children and remoter issue living at death or born thereafter during the trust period of 125 years.
Does this not mean the class is still open?
Any guidance would be appreciated. Thank you
Lucy you mentioned that these were all discretionary trusts. If the position regarding the 25% share can be resolved as I suggested, the trustees can of course exercise their discretion in relation to that share and appoint the whole to one or more of the existing beneficiaries.