GoSeigen wrote:Those are my general thoughts; I would welcome comments on the following emboldened part of the will. It falls under the heading "distribution of the Estate" and deals with the case of ex-wife predeceasing my father:
"If my friend _EX-WIFE_ of ADDRESS is living on the date of my death I give devise and bequeath all the residue of my estate both real and personal whatsoever and wheresoever (including property over which I may have a power of appointment) after payment of my debts funeral and testementary expenses and subject to the general provisions of this my Will to her absolutely but If she does not so survive me I give devise and bequeath my estate as aforesaid to my Trustees** to sell call in and convert the same into money with power in their absolute discretion to postpone such sale calling in and conversion without being liable for loss or waste and to hold the remainder ["my residuary estate"] upon trust for my son GOSEIGEN of ADDRESS to distribute the same to the persons if living and in the manner set out in a memorandum of wishes which I have already prepared and signed and which will be found with this my will at my death and in so far as there may be such articles at the date of my death which are not subject to any directions contained in the said list I GIVE the same to the aforesaid GOSEIGEN absolutely."
** "Trustees" according to previous clauses would be me, GoSeigen
Now obviously ex-wife has survived him so this bold section doesn't have effect, but I am wondering what it all actually means if hypothetically she had died first -- this is what I as executor would have had to implement. e.g. Why are the two limbs worded so differently: in my estimation they should have been nearly identical... Should I be wondering about the skills of the drafter?
Firstly, can you confirm that you are in fact the executor? Usually, where the whole of the estate is left to one adult beneficiary they would be appointed as the sole executor. It's very unusual to appoint one executor then leave the whole estate to someone else, if only because - unlike the beneficiary - the executor has no incentive whatsoever to accept the appointment and take on the tedious task of administering the estate for no reward.
Secondly, have you established that the memorandum of wishes exists? Assuming it does and it was found with the Will, as stated, then it forms part of the Will and must be admitted to probate along with the Will.
I have to say that it's a very stupid way of preparing a Will, as there must be a risk that the memorandum would be lost, and if the object of the separate memorandum was to try and hide the identity of the beneficiaries it's failed, as once admitted to probate the memorandum becomes a public document as part of the Will.
The relevant law is known as the incorporation of documents. A testator may incorporate another document into his Will by referring to it in his Will, as here.
There are three conditions which must be satisfied in order for a document to be incorporated by reference, these being as follows:
1. The document must be in existence at the date of the Will. This box is ticked, as the Will refers to it having been `prepared and signed'.
2. The Will must refer to the document as an existing document - tick.
3. The description of the document in the Will must mean that there is no doubt that the document is the document which is being referred to. This is why it's important that the memorandum was with the Will. If it was found separately there's a risk that it could be a replacement for the original, and therefore not valid.
The whole situation sounds very suspicious, and you may be inclined to investigate the circumstances in which the WIll was made, To do so you should try to obtain a copy of the file from whoever it was that made the Will.
This is quite a common tactic used by solicitors who are investigating suspicious Wills, and there's actually a specific type of letter known as a
Larke -v- Nugus letter - it's named after a case of that name. There's a summary of the relevant law here (not an endorsement of the firm that prepared the feature) -
https://www.footanstey.com/article/chal ... statement/