I have drawn up a Will for my client (CB) incorporating a disabled person Trust her son.
CB’s father has now instructed my colleague to draw up his Will, which includes gifting his home to CB. My colleague has advised that if CB predeceases him, it would be prudent to include a disabled person Trust in his Will to provide for his grandson. The father has said that he does not wish for any complicated provisions within his Will.
My thought was that father’s Will potentially be drafted along the following lines:
I give my property to my daughter CB absolutely and beneficially provided that if she shall predecease me then my property shall pass into the Trust as established within CB’s Will dated XYZ.
Can anyone see any issues with this?
(Of course if CB changes her Will it could be a problem but that is highly unlikely).
Thoughts on this, or if anyone has come across something similar previously, much appreciated.
I think the problem you have identified would cause me nightmares on its own. If CB did change her will, for any reason, you’d have a potential intestacy on your hands. Presumably marriage/remarriage is always a possibility over decades. The fact CB is unlikely to predecease her father would not avoid you/her needing to consider the problem and father may not be fit to make an equivalent change at the time.
Would it not be an idea to enlarge the draft wording to incorporate the Trust wording of CB’s Will by reference, and attaching a copy of CB’s Will as an Exhibit to the Father’s Will? If this occurs, it will not matter what CB does with her own Will in due time as it is the wording of the Trust for the grandson which is incorporated by reference into the Father’s Will that is important, not whether or not CB revokes her Will at a later date. The father then has his simple Will, but with CB’s Will as an exhibit attached to the Father’s Will. You could also add wording to the effect that any changes made by CB to her Will (revocation etc) shall not have any effect as regards the interpretation of the Father’s Will. As mentioned it is the incorporation of the present wording of the trust created by CB’s Will that is important, not whether or not CB’s Will changes later over time.
Yours sincerely,
Peter Double / Probate Resealing Services
Sorry to be late on this thread, but my initial thought was of concern about client confidentiality. Whatever the father may have said to your colleague, did your firm have consent to share CB’s details with him, as it seems may have been done? Even if it is accepted that father and daughter were both fully agreeable to some information sharing, it is possible that the father has his own reasons for avoiding what he may consider to be “complicated trusts”.
Obviously we lack much detail on this forum, including the values involved and the type and number of other possibly competing relationships. But surely there are times when our duty to our client [the testator] might be to follow his wishes, even in a case in which you personally may have preferred a different course [and advised accordingly]?
Kevin