will advice please

[slcd2013]

Hi i wonder if anyone can help me, my husbands nan has spoken to me today, she wanted to talk to me about her will of which me and my husband are both executors too (but didnt know what was in the will) she has today said that our 4 children (two eldest kids are his from another relationship) are to get 25% each from her estate when the time comes, but she has stipulated that the money is to be used for private education and that we are both trustee's for this. However she is now worried as someone has told her that as the eldest two children dont live with us (only come weekends and holidays) that their mum can contest the will to become trustee, and this worries her as she knows her wishes wouldnt be followed out. Does anyone know if this is true? Can their mum contest this? However also if she cant what happens if she doesnt agree to them going to private school? We didnt know about any of this and obvioulsy as executors we would be responsible to carry out her wishes but if their mum doesnt agree to them going then we couldnt carry out her wishes and then could we get in trouble? Im a bit worried now. Does that make sense? Sorry for rambling.

Firstly, Private schools are expensive. Do you know if her estate will be worth enough to cover these costs for four children? If it is, then she ehouldbe able to afford a solicitor to get proper advice.

Secondly, I don't think its fair of her to set this condition. Educational choices are complex and best made by the parents. For example, suppose the kids are at a great school already and the money would be better spent on university?

You husband's grandmother cannot dictate how you, he and his ex-partner choose to educate their and your children.
For a start as pointed out above private education for 4 children is likely to cost from £40,000 per year upwards and that doesn't include the cost of uniforms, school trips and extra-curricula activities such as music lessons. Even assuming the children are only privately educated through secondary school then you are looking at a minimum of £280,000 required. Is the net estate large enough to support this cost ?

What happens if the children don't get into a private school ( most are selective) or are unhappy there ? How old are the children and the grandmother ? My grandmothers both died after I had left both school and university. My husband's grandmother is still very much alive and he is 38 ! What happens to the money in those circumstances ie if the children are too old for education by the time she dies?
What happens to the money if the children are not privately educated ? Who gets it ? Was the will professionally drafted or is it homemade ?

It seems a very odd will to make if I'm honest. I could understand if she was already paying for their education and wanted to make sure that this continued after her death to provide some stability for the children, but this will seems to do the exact opposite of that. She seems to be saying that when she dies she wants all 4 kids to be pulled out of whatever school they're in at whatever point in their education ( mid-GCSE year for example) and be sent somewhere else. How is this supposed to be beneficial for them ? If private education is so important to her why isn't she funding it now ?

Anyway, after all that, in answer to your query you will not get into any kind of immediate "trouble" for not carrying out her wishes. Generally trusts are fairly widely drawn to allow the trustees power to deal with a variety of family circumstances. If the trust specifies that the money can only be used for school fees then presumably there must be a default clause that says what happens to it if either a) the children are too old for education or b) private education didn't happen. In this case you would just distribute the funds as per the default clause. The only issue is that in theory your own children could sue you as adults for breach of trust if they believe that they have been disadvantaged by your actions. Only you know how likely this is to happen and it would be a very difficult case to prove.

You may wish to consider resigning as Trustees when the time comes and appointing professionals in your place as I think you could have a conflict of interest in these circumstances as both Trustee and parent ( particularly if the money goes to say your DH if the children don't go to private school). I would suggest that if you have a copy of the will you take it to a solicitor and get some proper legal advice if you are concerned.

And as an aside if I were your DH's ex there is no way on earth that I would allow my ex-MIL to dictate the terms of my children's education.

PM me if you want any more help.

As Poshfrock says, there are an awful lot of holes in this proposal. The simplest thing may be just to do an expression of wishes, but leave the trustees discretion to do as they see fit, so long as that benefits the children generally.

Hi thanks for the messages, yes this all makes sense, my step kids are 12, 11, and my kids are 9 and almost 4. And no i dont believe there would be enough money to cover these costs, and thats my point what do i do pull my kids out of there very good schools for a couple of years and then hope to get them back in after the money runs out?? Its silly! She said the clause is if you dont follow her instruction on say the first child the money goes back in the pot for the other 3 and so on. The only other person she is leaving anything too is a charity so i assume if we dont follow her instructions then they get everything! I dont know! However they are all saying at this stage of there lives they want/hope to go to university and this money would go a very good way towards paying for this but would this be following the wishes.

So if we stood down from executor and made the solicitor become it i assume they would too become the trustee to the children, so as parents do we then challenge the solicitor if and when the time comes?

His Nan is 84.

sorry the will was made by a solicitor

You should also confirm whether you are (or expected to be) executors or trustees or both. You seem to use both terms.
Executors would normally be expected to carry out the wishes of the deceased (via the will). In this case, it sounds like part of that execution may be establishing a trust in which to manage the money left to the under-age children.
The trust would then be established with trustees - who may or may not be the same people as executors.

I was once advised to keep a will as simple as possible - in the sense that too many specific requests (in a small or average sized estate) just complicates matters :-)

Thanks for the extra info. Given the current ages of the children this all seems even more bizarre. My Nan lived until she was 96 so if this lady does the same then the eldest grandchild will be 24 when she dies and the youngest 16. Given that it can easily take a year to sort out an estate then realistically none of the children would benefit in those circumstances as the elder 3 would already have left school and the youngest would only have 1 year left. In addition it all seems very unfair as if she died tomorrow and you abided by her wishes then the eldest grandchild would only get a maximum of 5 years private education whereas the youngest could potentially have 13 years. Has anyone discussed these types of issues with her?

The executors and trustees are often the same people but can be different ones. You could stay as executors but resign as trustees.
You can only contest the Trust if you think it is being maladministered. If the solicitor is the Trustee and just abides by its terms then you can't really challenge them just because you don't agree with those terms.

If I were you I would maybe remain as trustees and see if you can use the argument that a university education may as well be private given the cost and use the funds for that providing you have the agreement of the ex spouse. It's difficult to give precise advice without seeing the actual will. However it still doesn't get round the problem that some of the kids may already be too old to benefit by the time she dies and it would be unfair for the younger kids to receive funding and not the elder. This could also cause conflict with the ex spouse as it would be her kids who would be more likely to miss out as they are the oldest.

Have you actually seen the will ? If not and you have been appointed as executor then it would not be unreasonable to ask to see a copy so you know exactly what responsibilities you are being expected to take on.

It sounds like a nightmare waiting to happen. Is she approachable in any way? would she listen to an approach that you are pleased she wants to help dc but its not going to work the way she has described. Money to be used for education, yes fine, not specifically for private school. could you leverage having to get agreement from eldest childrens mother as a factor?

Hi thanks for the replies, i have tried to speak to her, as she approached me on the matter, she is very set in her ways, i tried to explain the the ex may cause a problem, (baring in mind i find this a very difficult subject to talk about to her, sensitive i mean) she just said that if they dont play by her terms they dont get! I tried to say nicely but that wouldnt be the childrens fault and she said basicly this is what she wants. I dont want to be rude or to try and dig into her personal matters, its her business at the end of the day, but we dont want to do wrong by her wishes or do wrong by our children.

In answer to someones question we are both executor and trustee.

We have never had the responsibility of anything like this, we no nothing and to be honest she keeps her cards very close to her chest which is obviously her right, but i know that there wouldnt be enough money to pay for what shes stating anyway. So this would only mess up the youngest childs education anyway potentionally with him only being 3 now.

And therein lies the problem. It's what SHE wants without any regard for what you, your DH, your DH'S ex or your children might want. Your children's education is far too important to have its provider dictated by a distant relative. She is their great-grandmother. She does not get to decide. You may have to accept that the funds will go elsewhere. Have you seen the will yet? I would still be very surprised if it has as little flexibility as you describe.

I think you may have to tell her that as you, as well as the mother of the other two children, cannot guarantee that you would use the money in the way she wishes, that you cannot therefore be a trustee and can she therefore get the will re-written and leave it all to the cats home