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please help with writing a will (Read 3370 times)
jenny118
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please help with writing a will
Mar 13th, 2007 at 1:31am
 
Hi please could some one help, my Mum wants to know if she made a will  that she leaves my brother her house but in return for the house that my brother is to pay me the sum of £12.000 at the time the will was written going up by £2.000 a year till the will is read, and my brother is to pay it in 3 payments every 4 months, and has got to have payed me  within a year.also that he is to pay me  rent of £100 a week at the time the will is wrote going up by 3% a year untill the will is read, and that if he does not keep to the agreement the house has to be sold and split 30% / 70%  she wants to know if she can put all of that in a will and would the will be valid, she lives in England. thanks
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petrocelli
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Re: please help with writing a will
Reply #1 - Mar 13th, 2007 at 2:20pm
 
FYI the part you have put at the end of the post:

Quote:
she lives in England. thanks


Is in fact extremely important, as unless the Will is in respect of poperty in Scotland, then this is a Question of English Law, and you may be unlikely to get a response from this Scottish Law forum.



ASSUMING THAT THIS IS A SCOTTISH LAW QUERY, then it seems there is a big problem with this:

You have said the house is to be left to your brother.  Presumably this is AFTER your Mother's death.  How then could the Will provide for  payments to be made from the time of it being written (when she would still be alive) until the time of her death?

Let me be perfectly clear - the purpose of a Will is to deal with distribution of estate AFTER death.  If your mother requires a vehicle to provide for payments to be made by one third party party to another third party (esto that she would have any interest in such an arrangement), then a Will is certainly not the right way to go about it.

The arrangements you have described would all take place while your mother was still alive.  In those circumstances, I cannot see any possible way (certainly in terms of Scots Law) that her Will could provide for this.

I also note that it is intended that he should pay you rent (presumably, after the property has passed to him).  If the property is left to him in the Will outright, then there would be no requirement on him to pay you rent.  Rent is something which is paid by a Tenant to a Landlord.  As he is the owner of the property, I fail to see how you could possibly be the Landlord.  There is also a danger that if the Will is not correctly drafted, and the legacy of the house is conditional on his making payments to you, that he might simply not accept the specific legacy and make a legal rights claim, in which case (unless there is other information of which I am not aware) he would be entitled to 50% of the property regardless.



IMO what is required would be as follows:

1.  A formal agreement to be drawn up between you and your brother vis a vis the payments
2.  A specific legacy of the House to your Brother in your mother's Will (assuming this is to pass on death)
3.  A letter of Wishes, which should accompany your mother's Will, making it clear to the Executors that the specific legacy of the house to your brother should only pass if he has maintained the payments made to you in terms of the formal agreement.

There would require to be a clause accompanying the specific legacy indicating that it should be made over at the discretion of the Executors.  This clause would also need to stipulate what is to happen to the property if it is not to be made over to your brother.

Serious consideration would also need to be given to whom your mother should appoint as Executors, for obvious reasons, namely:

(1)  Given the above, appointing you and your brother would obivously be a bad idea, and
(2)  The Letter of Wishes would be discretionary, and the executors are not bound by it.

Once again, to make this perfectly clear, this is the Scots Law position.

I should also add, for the sake of completeness, that this Will is most certainly not the norm, and your Mother would find that this would be reflected when it comes to raising a fee.  If you catch my drift.
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