A LOT OF STANDARD WILL CLAUSES ARE COMPLICATED SO, WHAT DOES THE ‘LEGALISE’ MEAN?
AN EXPLANATION – Your Will may contain some or all of these clauses
• “Without intending to derogate……..”
The purpose of this clause is to give the Trustees the discretion to advance the whole of the gift and income generated by it, if they consider it appropriate, but only for the maintenance, education, general benefit or advantage of the beneficiary until they become of age to inherit themselves i.e. – a child inherits under the inheritance age but, wants to go to university, the Trustees can advance all or a portion of the gift and any income.
• “I declare that any money………”
The power of investment is somewhat restricted under the Trustee Act and it is for this reason that the Trustees are often given wider power to invest funds with the same unrestricted powers as if they were the deceased. As the deceased sufficiently trusts the judgement of their appointed Trustees, then they should give them full discretion to invest in whatever investments they consider appropriate, as any restrictions could well tie the Trustees hands and adversely affect the ultimate value of the trust fund.
• “I declare that my Trustees may exercise the power of appropriation……”
Sometimes a beneficiary may wish an item forming part of the estate to be given to them in satisfaction of a legacy of money. For example, the jewellery instead of a gift of money. Where an item of jewellery has not been left specifically it would normally be sold and it would be necessary to obtain the consent of all the persons who are entitled to inherit for the item to be given to a beneficiary instead of the sum of money. This Clause is inserted to allow the Trustees to give a particular item of the estate to a beneficiary as part of their inheritance.
• “I declare that in any case where my Trustees have an obligation………”
This clause gives the Trustees discretion to either apply directly themselves, or to pay the same to the parent or guardian of the minor beneficiary without being responsible to see to the application of the funds, thereby not having to look after the gift for possibly a number of years.
• “I declare that any Trustees shall have the power to insure……….”
Where a property has been left either on trust or under a life interest, or where it is going to be sold, the trustees have limited power to insure under the provisions of the Trustee Act 1925. Because the powers under the Act are somewhat restricted, this clause gives the trustees power to insure for whatever amount or in whatever terms they consider to be appropriate.
• ”Every person……………”
A good will contains the twenty-eight day survivor clause by default. This has the effect of avoiding two separate estate administrations in the event of the deceased and his/her beneficiary dying together or as a result of the same accident. It also has the effect of ensuring that the deceased’s wishes are carried out especially where there are substitute beneficiaries.
• PROVIDED THAT……..per stirpes…”
A good will can contain ‘stirpes’ which means if the intended beneficiary should be predeceased or the gift lapses, it will pass to their child or children in equal shares if more than one. The child or children may have an age restriction applied, i.e. upon attaining the age of twenty-five. Should there be no child or children to substitute, then that share is added to the others remaining and shared as per accretion.
• “Added as an accretion…….”
A good will can contain ‘accretion’ which means if the intended beneficiary should be predeceased or not take the gift, the gift lapses, the share will not pass to their child or children but, out to the surviving beneficiaries, i.e. leaving any child or children surviving them such child or children shall NOT take the share of my estate…….shall be added as an accretion to the remaining gifts.
• “My Trustees may in their absolute discretion whether or not in their own names………”
This clause enables the Trustees to continue any of the deceased’s business interests immediately after death rather than having to wait for The Grant of Probate.
Please note :- the following three clauses are inserted to assist the Trustees in their administration of the estate by simplifying procedures which would be complicated without the insertion of these clauses.
• “I declare that my Trustees may treat as income…..”
• “I direct that all interest dividends………”
• “I declare that all income accruing……….”
A LOT OF STANDARD WILL CLAUSES ARE COMPLICATED SO, WHAT DOES THE ‘LEGALISE’ MEAN? AN EXPLANATION – Your Will may contain some or all of these clauses • “Without intending to derogate……..” The purpose of this clause is to give the Trustees the discretion to advance the whole of the gift and income generated by […]Read More