Legal Analysis of Will Drafting

Would you please look over the will and tell me whether you think the gifts in Clauses 3, 4 and 5 are valid and work legally?

Dear Mr. Theophilus,

Austen Towers,

Conrad Property,

Barchester, Dampshire

I have looked into the information provided by you and have found some exclusions which must be enunciated and included to ensure a valid trust. I would like to revisit the draft will formulated by Cheap ‘n’ Eazy Bespoke Wills Limited and provide for an alternative draft will acknowledging your requirements as mentioned in the client information form filled for Cheap ‘n’ Eazy Bespoke Wills Limited. Let me address the core issue areas that you would want me to address and revisit concerning your gifts that are addressed to your family members along with a few excluding members as mentioned by you in the client information form.

A will is a testament that is basically drafted on behalf of the testator to secure and advance the property and possession of the testator so that such estate is to be distributed carefully as per the wishes of the testators by assigning an executor or a trustee who would fulfil the role of the two by carrying out the responsibilities as given by the testator. As per the draft will provided by Cheap ‘n’ Eazy Bespoke Wills Limited, Clause 3 of the will addresses your property that you wish to leave in the name of your sister Sarah Conway and further ask her to leave the property on her death to your nieces, Emma and Katie Conway. Clause 4 addresses your decision in allocating your wine collection to your preferred members, excluding some and lastly, Clause 5 deals with allocation of your remaining property.

However, I would like draft you the entire will with alternate wordings with respect to the gifts mentioned by you left to be allocated to different members of your family and otherwise.

Since you have abided by the clause provided by the company Cheap ‘n’ Eazy Bespoke Wills limited to appoint them as your executor and trustee, which basically means that the appointed executor looks after the estate of the person after the person is dead. The executor also has the role to not only manage the entire property but also follow the terms of the will with respect to the property and all other assets of the property. It is also the duty of the executor to follow all the laws and keep track of the will, apply for a probate and determine the original beneficiaries of the trust. The executor of the trust is also responsible and has a duty towards making sure that the debts are repaid, claims are received. The assets are lawfully managed and the ultimate responsibility lie towards looking out for the beneficiaries who are to benefit from the trust formed by the will. Thus, executors have a huge role to play in managing the trust after the death of the testator (NSW Government, 2017). However, there is a difference between the role of an executor as well as a trustee even though the testator has the power to appoint the same team or group of persons for the two different roles. The role of an executor has a wide range of duties as it could also include the duty to arrange for the funeral of the testator to following all the guidelines as per the law. It is not necessarily a paid service but the role of trustee is functional only in cases where a trust arises (Co-Op Legal services, 2019). In this case, the trustee also has a significant role in looking after the beneficiaries like – Sarah Conway, Nieces- Emma and Katie Conway with respect to the disposal of the freehold property. Luke York and cousin Fionna fielding, Nephew Mathew John and Mark York with respect to the vintage wine bottles. About 100 wine bottles are allotted to Luke York and the trustee then has the duty to execute fair judgment on deciding the rest of the wine bottles to be distributed amongst the people mentioned and otherwise.

As per the client information form provided by, it is mentioned that you are the sole owner of the property, ‘Austen Towers’, Conrad Property, Barchester, Dampshire. This property is solely owned by you which Is largely different from a leasehold property, and gives you the right to own the property without any interference in the ownership process. This freehold property basically means that any residential or societal property that is not held by any other body and freely owned by the owner which can be used for any purpose as the original owner deems fit to use. The freehold property denotes that the property is ‘free of hold’ for perpetuity and shall face no interference from any non-owner. This shall be enjoyed by both the landowner and the beneficiaries. The owner has the absolute right over the property and can transfer the property as per his discretion without any kind of limitation. The maintenance of a freehold property is also the responsibility of the final landowner or the beneficiary and does not depend on any other body. (Housing. Com, 2021)

The trustees have many additional powers which can be either be implied or explicit in association with the power of investment, joint property, general power of managing the property or improvement. The trustees also have the power to look into the development and improvement of the estate in charge. However, “Capital expenses need not be repaid under Section 84(2) of the Settled Land Act, 1925, which is as per the discretion of the trustees as well. The trustees are also endowed with the power to acquire “wasting assets” or any other assets that render no value in order to invest the same. The taxes and debts are also to be paid by the trustees out of the capital estate and they have no liability to obtain distributions from any company.

The drafted will as put forward by the company has been revisited by me and I have framed an drafted a detailed structure of will and set down below. However, you can mention additional powers that are to be endowed on the trustees and on addition a separate schedule can be formed. The schedule shall include the power of the trustees with respect to any trade if the trustees are interested or borrowing any amount of money for investment in future, or power of delegation of the trustees in which case, if the delegated person defaults their responsibility at any cost, in that case, the trustee shall not be held responsible for the delegated individual. The restrictions on delegations as per section 12 to 15 of the Trust Act, 2000 is not applicable in this case. (MyLawyer.co, 2018). Sections 31 and 32 of the Trust At, 1925 deals with the maintenance and with respect to the power of advancement of the estate on the trustee.

This is the last will and Testament of Mr. Theophilus York

1. I hereby revoke all former wills and testamentary dispositions made by me relating to my real and personal estate in England and Wales

2. I appoint the following directors of Cheap ‘n’ Eazy Bespoke Wills Limited, namely (full name) Tarquin Twist of c/o Unit 5, Start Up Industrial Estate, Barchester, Dampshire and (Full name) Olivia Turn of c/o Unit 5, Start Up Industrial Estate, Barchester, Dampshire (hereinafter called ‘My Trustees”) to be executor and trustees of my will.

3. In this will, where the context so admits, ‘my estate’ shall mean:

3.1 My property ‘Austen Towers’, ‘Conrad Avenue’, Barchester, Dampshire as a freehold property

3.2 My collection of vintage wine (250 bottles) on trust.

3.3 All my remaining property of every kind in England and Wales

3.4 All my property of every kind in England and Wales over which I have general power of appointment

3.5 My finances, investments and remaining property from time to time representing all such property.

4. The administration of estate shall require my trustees to:

4.1 pay my debts, arrange funeral and all such testamentary expenses and inheritance tax on all such remaining property as vested in them

4.2 Satisfy all gifts of the mentioned estate as referred to in this will.

4.3 Deliver payments of all gifts in kind as the will

4.4 Manage the remainder of the property as set out in the will.

4.5 All the required payments that are to be made including the debts, funeral expenses, inheritance tax, testamentary expenses shall be payable out of the residue of the estate.

5. The trustees may make any kind of investment that they would make if they were absolutely entitled to the trust fund and may invest in any part of the world and unsecured loans.

6. The trustees are in no way obligated to diversify the trust fund.

7. The trustees may invest in speculative and hazardous investments but this power may only be exercised at the time when there are at least two trustees, or the trustee is a company carrying on a business that consists of or includes the management of the trusts.

8. I give the following specific legacies to:

8.1 The freehold property owned by me by the name of ‘Austen Towers’, Conrad Property, Barchester Dampshire is to be gifted to Sarah Conway since I do not have my own children and I would like for my trustee to ensure that after the death of my sister, Sarah Conway, the property is further passed on to my two nieces Emma and Katie Conway in absolute equal shares under a will.

8.2 100 wine bottles out of my 250 valuable vintage wine bottles of varying value is to be given to my brother Luke York and the rest 150 bottles is to be chosen from amongst my cousin Fiona Fielding, my Nephews Matthew Mark and John York and any other person as deemed appropriate by my appointed trustee apart from my brother Constantine York, his wife Eustacia York or any of their three children Eustacia, Daniel and Philomena York to take under the gift of my collection of valuable wines as they are self sufficient and wealthy and may not adequately uphold the value of such priceless wines.

8.3 In implementing the foregoing provisions, the trustees shall be the sole judges as to the identity of any asset specifically bequeathed and as to the nature and extent of the bequests in this clause; and the decisions of the trustees on all such matters shall be final and binding on all beneficiaries under this will and under any codicils to this will.

9. Regarding the residue estate, I would like to leave the remainder of my property to be held on trust for independent fee charging schools within the county of Dampshire as I have received a private education and I would like to allow others to benefit such good fortune by having access to private education through the trust that shall be formed in order to support this independent sector and in such manner as my appointed trustees shall in their absolute discretion think fit.

10. I would also like to specify that my brother Constantine York, his wife Eustacia York and their three children Eustacia, Daniel, Philomena York, my sister Sarah Conway’s husband Gordon Conway and my brother Luke York’s wife Cruella York shall be refrained from having access to or accrue any benefit from my will under any circumstances.

This is a detailed draft of your will that states your estate, the capacity, role and responsibility of your appointed trustee and executor. However, along with this there shall be a schedule attached that would lay down any definition for further understanding. Along with that, a schedule of standard provision shall be laid down which shall consist of any additional duty or responsibility that the trustee shall be vested with in executing the functions.

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REFERENCES

NSW Government, 2017, “ What is an executor and Trustee and what do they do”, Viewed on 10th February, 2021 < https://planningaheadtools.com.au/prepare-a-will/what-is-an-executor-and-trustee-and-what-do-they-do/#:~:text=The%20role%20of%20the%20executor,for%20your%20children%20or%20grandchildren.>

Co-Op Legal Services, 2019, “ What’s the difference between an executor and trustee in a probate”, viewed on 10th February, 2021 < https://www.co-oplegalservices.co.uk/media-centre/articles-jul-sep-2019/whats-the-difference-between-an-executor-and-a-trustee-in-probate/>

Housing. Com, 2021, “ Real Estate basics: What is a freehold property?”, viewed on 10th February, 2021, < https://housing.com/news/real-estate-basics-freehold-property/>

My Lawyer. Co, 2018, Sample Will , viewed on 10th February, 2021 < https://www.mylawyer.co.uk/law/pdf/examples/Sample-Comprehensive-married-will.pdf>