Our first article of the series looked at gifts that can be made in a will. This 2-part article will now look at what issues can arise with gifts made in a Will that we have come across.
Sharing one gift equally
On many occasions we have received queries where clients are wanting to gift their necklace or car to be shared equally between their 3 children. A single gift of this sort cannot be shared and is likely to cause dispute between the beneficiaries i.e. who should have the vehicle or item of jewellery at their house, who uses it and when. If it was to be sold, then all beneficiaries must agree to it so what if this cannot be achieved?
Resolution: The item can be gifted to one of the beneficiaries and the value of the item can be gifted to the other beneficiaries
Gifting a ring to one child and then another clause in the Will gifting “all my jewellery.”
The issue with this is that in one clause the intention is clear in that the ring should be gifted to X. However, if there is another clause “gifting all my jewellery to Y” then this conflicts with the earlier clause.
Resolution: one way to get around this is to draft the second clause gifting “all my remaining jewellery to Y”
Gifting a record collection, for example, to a group of beneficiaries.
As there are several records that would be included within the record collection, the issue with this is that there could cause dispute as to who has which record.
Resolution: include a clause within the Will giving the beneficiaries a choice of any number of records to be selected within 3/6 months of the testator’s death and state that in the event of a dispute arising, the decision of the trustees will be binding on all of the beneficiaries.
Gifting bank accounts
Our last article stated that bank accounts and savings accounts can be gifted in a Will. However, we have received several queries where the testator may wish to gift the contents of one specific bank account to a beneficiary. The risk this carries is that if they were to change their bank account before their death and failed to update the will, the gift of the specific bank account would fail.
Resolution: whilst the specific bank account can be gifted in a Will, make it clear that if such gift exists in a Will, if the testator later changes their bank account, the Will will need updating so as to ensure the gift does not fail.
Leaving a money gift to be used for pets as long as the beneficiary accepts them and that such money is used for the benefit of the animals.
This is a 2-part question so let’s take a look at each one separately.
It is possible to leave a money gift to X on the basis that they accept the animals but the risk here is that X could accept the animals, take the money and then rehome the animals. At this point there would be no recourse of action from anyone.
It is possible to leave a gift of money with the wish that it is used for the pets. However, this would be a non-binding wish and there is nothing to prevent X from using the sum of money for himself/herself rather than the animals.
Resolution: if this is a fairly large sum of money, it is possible to place it in an animal purpose trust. This trust would place the animals and the sum of money in the care of the trustees. The beneficiaries of the trust could be the trustees or someone else could be appointed.
The sum that goes into this trust can only be used to care for the animals for the rest of their natural lives, or for a maximum of 21 years.
It is important to note that although the trust itself can’t specify exactly how the fund is used for each animal, it is possible to set out in a letter of wishes if there are any specific requests for how the funds are used. The trust itself is legally binding, so it is guaranteed that the money will be protected and used only for the animal’s upkeep.
If you have any questions or need any guidance with the preparation of your Will or LPAs, please speak to one of our will writers today.
