Calling legal eagles - urgent advice on wording a will (one para) kindly sought?

Question

Is para 4 below valid?

Many thanks
Neil

THIS WILL dated the day of 2007 is made by
1. I REVOKE all former testamentary dispositions

2. (a) I APPOINT as my sole Executor and Trustee my nephew ....

(b) IN this Will the expression "my Executor" includes the trustee or trustees for the time being of this Will and the trusts arising from it

3. I GIVE the following pecuniary legacies free of tax:-

(a) TO ...

4. MY EXECUTOR shall hold the residue of my estate upon the trust for my said nephew absolutely

SIGNED by the above named
..... as her last Will
in our joint presence and attested
by us jointly in her presence

Answer 1

A Will is too important to spack around with.

One wrong word, even spelling mistake, can see it make invalid.

Answer 2

Unless you have only one nephew (and even then for the sake of prudence) then you should identify your newphew with his full name and current address.

If you're in Scotland, if you want to make the document probative (which is required for confirmation and appointment of the executor-nominate) then the witnesses must have their full name and address in the 'testing clause', and it must be signed by them.

I would also agree that you should split the creation of the trust, as it's just a bit messy right now.

However, just for information purposes the poster above is incorrect when he says saying free of tax has no legal effect in the UK (I'm sure it's because he didn't realise this was a UK question, as his answers are always very informative here) Where a legacy is given free of tax, it means that the inheritance tax to be paid on that particular legacy is deducted from the residue of the estate.

On the other hand, if it had been bequeathed 'bearing its own tax', then it would have borne the inheritance tax of the whoel estate proportionately to the value of that legacy.

However, you don't actually need to say 'free of tax', as there is a statutory presumption that it is given free of tax (s211 Inheritance Tax Act 1984). But once again, it's prudent just to put it in to make it clear you meant that.

Furthermore - in Scotland, you have a big, big issue with that trust. If it is the same nephew mentioned throughout, then the trust will be invalid, as Scots law does not allow the same person to be sole trustee and beneficiary of a trust.

In this case, the trust would fail and the assets meant for it would then go back to your estate to be directed according to your residual provision - which is a trust to your nephew! Which causes a bit of a never-ending circle. So, your trust would fail and your residue would lapse into intestacy.

So, if in Scotland, your residual provision is invalid on first look to me, and your residue would go to your closest blood relative by s2 Succession (Scotland) Act 1964.

Answer 3

Paragraph 4 does not give enough information. The nephew should be identified, the terms of the trust including how long it is to last are not specified, the powers of the trustee are not listed, there is no identification of whether the income is to be paid to the nephew, there is no indication whether the trustee can invade principal (use capital) to pay for the nephew's expenses (trust provisions may provide that the trustee may use trust principal for health, education, and welfare purposes in accordance with the absolute discretion of the trustee), there is no indication whether the trustee will be paid a fee for his duties as trustee, etc. Also, what happens if the nephew dies? Is the money to go to the nephew's wife, to his children, or to the Penn State University?

Answer 4

I wouldn't phrase some of the provisions like that.

First, I'd make the trust-creation separate from the will.

Create the trust, then declare that the trust will be funded by assets assigned from the residuary of the will. That clears up the 3b confusing language problem.

The word "absolutely" in p4 I haven't seen used before -- it might have specific meaning in your state -- but generally there are better ways to define the trust framework.

As for the phrasing in 3 -- "pecuniary" generally means money only, which would be a bequest not a legacy -- and would preclude any non-monetary devises. Also the "free of tax" is meaningless, since you have no say in what is taxed.

That's one of the problems writing a will by yourself, without having a lawyer review it -- the specific phrasings used and interpreted by the state laws and courts sometimes matter.

Answer 5

UK ANSWER
1. Better to say 'I revoke all former wills'.
2. Full name and current address of Nephew. Do not understand the 'trusts arising from it'. You must explain if there are Trusts otherwise see my answer No. 4
3. (a) Full names and current addresses.
4.The residue of my Estate I bequeath to my Executor the aforementioned (Full Name)