A Will. Clarification of a Term

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tdgeek

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# 220145 27-Jul-2017 17:55

I am one of two administering a Will as an Executor. Assets all liquidated, the beneficiaries are due their amount when their age is met. No problem there.

There is a term "apply for the maintenance, education, or benefit of any minor beneficiary [that they are or will be entitled to, etc, etc]

This means that we can allow any funds to be advanced early, an example is education, which we are doing for one beneficiary. Another appropriate use is if there were a desire to purchase a home. Better now than later for the beneficiaries future. A wonderful use of the funds. Note that the age of entitlement is 26, not the typical 21. The issue is one wants funds to outfit a flat, literally top to bottom, cat=r, TV and so on as a baby is due. Age is under 20. The term in the Will is quite typical, I assume. But its vague. I take maintenance as a situation where there is a personal need, or affecting the personal life that cannot wait, and is very necessary. What however does "benefit" mean? That can mean anything. The lawyer is of the opinion that education, buying a house, and other very necessary things are appropriate. But the word "benefit" isn't helpful. He doesn't feel there is a legal or judicial definition. I can add the intent and attitudes of the deceased as to her desires, but I assume the real need is some form of definition of maintenance and benefit in the context of a Will

Another issue, is the word minor. Thats 20 or under here. What happens when they reach 21?

TIA

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# 1832441 27-Jul-2017 18:37

In my view, the intent of this will is to provide funds to the beneficiary for any situation where there is a higher than normal need for money until the age of 26.

While the word minor is used it does not make sense to cut them off between 21 and 25, when the rest of the wording seems to want to give them money in times of need -- anyway, isn't a minor under 16? That is when you legally require a guardian.

Geektastic

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# 1832447 27-Jul-2017 18:50

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Personally I would read that as an expression intended to give you (the executors) the ability to use your discretion.

I don't think it is meant to have a more literal definition than that. JMO of course and IANAL.

tdgeek

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# 1832448 27-Jul-2017 18:50

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surfisup1000:

In my view, the intent of this will is to provide funds to the beneficiary for any situation where there is a higher than normal need for money until the age of 26.

While the word minor is used it does not make sense to cut them off between 21 and 25, when the rest of the wording seems to want to give them money in times of need -- anyway, isn't a minor under 16? That is when you legally require a guardian.

Age of majority here is 21 I think. The Will decrees age 26. We can't administer a Will and not carry out the terms of that Will. There is flexibility for need, but cars, TV etc etc and etc are part of life, everyone sets themselves up. Its essentially taking the money now, not when due. IMHO.

surfisup1000

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# 1832449 27-Jul-2017 18:55

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tdgeek:

surfisup1000:

In my view, the intent of this will is to provide funds to the beneficiary for any situation where there is a higher than normal need for money until the age of 26.

While the word minor is used it does not make sense to cut them off between 21 and 25, when the rest of the wording seems to want to give them money in times of need -- anyway, isn't a minor under 16? That is when you legally require a guardian.

Age of majority here is 21 I think. The Will decrees age 26. We can't administer a Will and not carry out the terms of that Will. There is flexibility for need, but cars, TV etc etc and etc are part of life, everyone sets themselves up. Its essentially taking the money now, not when due. IMHO.

Yep, I'd agree with you.

Baby on the way? Having kids is part of life too so even that may be out of the scope of this will.

tdgeek

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# 1832450 27-Jul-2017 18:55

Geektastic:

Personally I would read that as an expression intended to give you (the executors) the ability to use your discretion.

I don't think it is meant to have a more literal definition than that. JMO of course and IANAL.

Yep. Discretion is there. The issue we face is want vs need. Have it now, or have it when due. Both of which contravene the Will's intention and yes, while I have done some law in financial degrees, IANAL. It's not that we are the deciders, in fact we make no decisions, literally, the Will does, and the intention of the Will, such as education and maintenance. But benefit? We have indicated we can meet the baby needs.

I really enjoyed the law studies, Contract, Company and Partnership, and Torts, but there is an amount of interpretation, assessing intent, that type of thing. P+L and a B/Sheet, nah thats B+W!

tdgeek

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# 1832454 27-Jul-2017 19:02

surfisup1000:

tdgeek:

surfisup1000:

In my view, the intent of this will is to provide funds to the beneficiary for any situation where there is a higher than normal need for money until the age of 26.

While the word minor is used it does not make sense to cut them off between 21 and 25, when the rest of the wording seems to want to give them money in times of need -- anyway, isn't a minor under 16? That is when you legally require a guardian.

Age of majority here is 21 I think. The Will decrees age 26. We can't administer a Will and not carry out the terms of that Will. There is flexibility for need, but cars, TV etc etc and etc are part of life, everyone sets themselves up. Its essentially taking the money now, not when due. IMHO.

Yep, I'd agree with you.

Baby on the way? Having kids is part of life too so even that may be out of the scope of this will.

I really agree, yeah. We can cover that, as I see that as a "benefit" and more importantly, what their Grandparent would do. To put another way, at 26 they do what they like. At up to that age, its kept back for a reason, but discretion for help is there. But setting up a flat/house is what everyone has to do one day. The amount is significant as is the baby needs, and these represent just 10%

Early on, the lawyer did say that Will proceeds do things to people. Its common.

surfisup1000

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# 1832455 27-Jul-2017 19:04

tdgeek:

surfisup1000:

tdgeek:

surfisup1000:

In my view, the intent of this will is to provide funds to the beneficiary for any situation where there is a higher than normal need for money until the age of 26.

While the word minor is used it does not make sense to cut them off between 21 and 25, when the rest of the wording seems to want to give them money in times of need -- anyway, isn't a minor under 16? That is when you legally require a guardian.

Age of majority here is 21 I think. The Will decrees age 26. We can't administer a Will and not carry out the terms of that Will. There is flexibility for need, but cars, TV etc etc and etc are part of life, everyone sets themselves up. Its essentially taking the money now, not when due. IMHO.

Yep, I'd agree with you.

Baby on the way? Having kids is part of life too so even that may be out of the scope of this will.

I really agree, yeah. We can cover that, as I see that as a "benefit" and more importantly, what their Grandparent would do. To put another way, at 26 they do what they like. At up to that age, its kept back for a reason, but discretion for help is there. But setting up a flat/house is what everyone has to do one day. The amount is significant as is the baby needs, and these represent just 10%

Early on, the lawyer did say that Will proceeds do things to people. Its common.

I reckon 30'ish would be a good age to release funds. Thinking back on it myself, so much temptation to waste cash on rubbish unimportant things when you're young. 21 is certainly too young.

geocom

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# 1832458 27-Jul-2017 19:05

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You have to be careful in making a decision to allow the funds to be disbursed from your trust as you would be liable if the beneficiary of the will squanders the money as they have not reached the age of entitlement. The Deceased decided for whatever reason that they thought the person would not be able to handle the money before the age at 26 unless the funds were for education or a house, The testator has put you in the position of making the decisions that the testator would have made. The sound advice would be to err on the side of caution.

Geoff E

tdgeek

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# 1832461 27-Jul-2017 19:14

geocom:

You have to be careful in making a decision to allow the funds to be disbursed from your trust as you would be liable if the beneficiary of the will squanders the money as they have not reached the age of entitlement. The Deceased decided for whatever reason that they thought the person would not be able to handle the money before the age at 26 unless the funds were for education or a house, The testator has put you in the position of making the decisions that the testator would have made. The sound advice would be to err on the side of caution.

Very much so.

tdgeek

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# 1832462 27-Jul-2017 19:17

surfisup1000:

tdgeek:

surfisup1000:

tdgeek:

surfisup1000:

In my view, the intent of this will is to provide funds to the beneficiary for any situation where there is a higher than normal need for money until the age of 26.

While the word minor is used it does not make sense to cut them off between 21 and 25, when the rest of the wording seems to want to give them money in times of need -- anyway, isn't a minor under 16? That is when you legally require a guardian.

Age of majority here is 21 I think. The Will decrees age 26. We can't administer a Will and not carry out the terms of that Will. There is flexibility for need, but cars, TV etc etc and etc are part of life, everyone sets themselves up. Its essentially taking the money now, not when due. IMHO.

Yep, I'd agree with you.

Baby on the way? Having kids is part of life too so even that may be out of the scope of this will.

I really agree, yeah. We can cover that, as I see that as a "benefit" and more importantly, what their Grandparent would do. To put another way, at 26 they do what they like. At up to that age, its kept back for a reason, but discretion for help is there. But setting up a flat/house is what everyone has to do one day. The amount is significant as is the baby needs, and these represent just 10%

Early on, the lawyer did say that Will proceeds do things to people. Its common.

I reckon 30'ish would be a good age to release funds. Thinking back on it myself, so much temptation to waste cash on rubbish unimportant things when you're young. 21 is certainly too young.

You're right. Preserve the benefit of the sum of money. Education and a home, they can do that literally early birds as its a lifelong benefit. But if not, 26, you can do what you like. I also feel that there is a perception that we decide. Well, no, we don't, the Will has decided that, its just this grey area.

Pumpedd

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# 1832479 27-Jul-2017 20:01

I would hope you seek professional help on this matter!!

tdgeek

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# 1832487 27-Jul-2017 20:23

Pumpedd:

I would hope you seek professional help on this matter!!

I have discussed with the lawyer. If you saw the list of items, quite comprehensive, to say the least. That does taint the intent from the beneficiary, if you get what I mean. His strong opinion aligned with mine, but its grey as in the wording.

Lets say we were pressed by the beneficiaries to court. If the intent of the will, the 26 age, and the wording, and us acting in a reasonable manner as to anything that were declined, and matters relating to family behaviours I have seen, I would feel comfortable. We arent trying to hang on to the money, its not ours, its theirs. In some ways, the 26 age is an indicator of financial trust held by the testator to the beneficiaries

lapimate

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# 1832560 27-Jul-2017 22:11

tdgeek:... or benefit of any minor beneficiary ...

What about attacking the problem from the perspective of what a dis-benefit would be? Eg champagne every morning? Some might have puritanical views about whether TVs are a "necessity", but since so many have them and even let their teenage children view them, the evidence suggests TVs must generally be perceived as a "benefit" not a "dis-benefit".

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# 1832567 27-Jul-2017 23:08

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It's a bit like drafting a Trust Deed.

The Trustees will usually be placed in the position of having to use their best endeavours to determine some aspect of the Settlor's intent. The courts would usually only expect people in those positions to do the best they can. As long as you've taken professional advice, not acted in contravention of it and the trustees (or, in this case, executors) have discussed it and agreed a course of action that the man on the Clapham Omnibus would not consider unreasonable it is unlikely the court would consider that you should have done more (what more can you do, for a start?) although I guess you never know with the law.

If it were me, I would personally define benefit in this context as being something that has lasting positive outcomes for the beneficiaries. I'd say that within that sort of area you as executors are actually entitled to use your judgement and that the person who made the will intended you to do so because otherwise they would have been absolutely specific and left it (for example) as education and maintenance.

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# 1832590 28-Jul-2017 01:00

tdgeek:
Another issue, is the word minor. Thats 20 or under here. What happens when they reach 21

IANAL but I believe the age of majority in NZ is generally 20 but certain Acts define minor as under 18. There is some suggestion that the Age of Majority Act should also be changed to 18.

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