If you feel that you have any grounds to challenge a Will of someone who has died in your family, it is important that you contact our solicitors in Cambridgeshire as soon as possible as there are strict time limits and prompt action is necessary.

GROUNDS FOR CLAIM

• Lack of testamentary capacity

If a Will or Codicil appears on the face of it to be in order and rationally made then unless there are particular circumstances which cast a doubt on its validity, testamentary capacity will be assumed. However, if there is evidence of confusion on the part of the person making the Will or a history of memory loss or other mental problem then it may be possible to try to challenge the validity of the Will on the basis that the testator did not have sufficient mental capability at the time of signing the Will. The person who makes a Will is known as the testator and he must understand the nature and consequences of making a Will i.e. that it can be revoked at any time and operates only on death. He must also understand the purpose of appointing executors, trustees and/or guardians and what happens if any of the beneficiaries die before him.

The Testator must also have an idea of the extent of his assets and what he owns in general terms and also understand the effect of making gifts in his lifetime and how this changes his estate. In the absence of medical opinion obtained when the Will was made, this may be difficult to assess especially if the testator was suffering from increasing memory loss.

The testator must understand the extent of his family so that he can consider the people for whom he ought to make provision. There may of course be particular reasons why a testator has left a larger part of his estate to some people rather than others and these may be important to the testator even though others would consider them to be irrational or eccentric.

They must not be affected by any insane delusion or any other mental disorder to effect his judgement. Just because somebody has been diagnosed with Alzheimer’s or dementia before signing their Will does not always mean that the Will is invalid as the testator might have lucid intervals or sufficient mental understanding to understand what they were signing despite their condition.

If you feel that you may have grounds to challenge a Will on the basis that there was a lack of testamentary capacity, it is important to try to gather as much evidence together as possible, such as details of any medical opinions or other written evidence at the time of signing the Will or before and details of any medical history.

If the Will was prepared by the testator’s solicitor then there should be notes with the solicitor’s file about the person’s mental understanding at the time when the Will was prepared.

If the witnesses can be contacted, are they able to give any evidence of the testator’s condition at the time of signing? How well did they know the testator?

Also the testator’s signature on the Will itself might be different to his normal signature on any letters. Are there any striking differences? If the signature on the Will looks particularly shaky or incomplete, this may indicate a problem.

• Coercion

Coercion means when somebody is forced to sign a testamentary document against their own wishes. The elderly or infirm testator may be easily intimidated or someone may have set out to gain the testator’s trust in the hope of benefitting from the estate. This is often difficult to prove.

• Incorrect signing of the Will

A Will must always be signed by the testator in the presence of two witnesses who must also sign the document in his or her presence. It is important that the beneficiaries or their spouses do not witness the Will as they would then lose the benefit due to them under the Will.

• Knowledge and approval of contents

There must be clear proof that the testator knew and approved the Will they have signed. Anyone who is a capable testator will be presumed to have had full knowledge and understanding of its contents.

How we can help

If you feel that you wish to challenge somebody’s Will, please make an appointment to see us as soon as possible as it is important that prompt action is taken.

If a Will has been signed by a mentally capable testator who knew the contents of their Will and there was no fraud or undue influence in the signing of the Will, the validity of the Will cannot be challenged. However, if the Will has not left sufficient financial provision for that person’s family or dependants, it may be possible to make a claim against the estate. For more information on challenging a will, contact our team of solicitors.

Unlike most other jurisdictions, in England and Wales there are no restrictions on the distribution of assets by a Will and therefore the testator is not forced by law to leave a certain percentage to his dependants. Therefore a statute known as Inheritance (Provision for Family and Dependants) Act 1975 allows claims for reasonable financial provision from the deceased person’s estate where no provision has been made by the Will or where the person has died intestate (without a Will). The 1975 Act is not intended to be grounds for disappointed beneficiaries although the Courts recognise the concept of moral obligation, particularly in cases of hardship.

The Courts would look at the following questions:

• does the Will (or intestacy provisions) make reasonable financial provision for the applicant?

• if not, should the Court intervene so as to award such provision from the estate?

• if so, what type of provision is appropriate in this particular case?

Reasonable financial provision means what is appropriate for that applicant’s maintenance.

The persons who may be able to make a claim are:

• The deceased’s spouse or civil partner.

• A former spouse or civilpartner – it is important to obtain a copy of the relevant divorce papers which would show any existing maintenance orders or possible agreements for a clean break.

• Cohabitants – if the death occurred on or after 1st January 1996, a claim may be brought by a person who lived with the deceased in one household as husband or wife for at least two years immediately prior to death.

• Children – child of the deceased has a wide meaning and includes adults, illegitimate or adopted children and those born after the parent’s death. The court will have regard to the standard of living which the child enjoyed before the parent’s death and to any future intentions of the deceased parent. Reasonable financial provision for a minor child comprises sufficient maintenance for that child to complete full time education or training. Even after this has ceased, the courts may be willing to extend the moral obligation principle to young adults.

• A person treated as a child of the family –any person who is not a child of the deceased but who was treated as a child of the family in relation to any marriage or civil partnership to which the deceased was a party may bring a claim.

• Dependants – anyone else (not within the categories referred to above) must have been maintained wholly or partially by the deceased immediately before the death. Maintenance in this case means a substantial contribution in money or moneys worth towards the claimant’s reasonable needs. It is important to establish the extent and status of the relationship between the deceased and the applicant i.e. how long it lasted, whether or not they lived in the same household all or part of the time, the form of provision made by the deceased and whether this was part of any contractual agreement. If regular contributions were being made to the applicant’s maintenance, it is likely that there will be documentary evidence such as householdmaccounts in the name of the deceased and copies of cheques etc.

The applicant must also show that the contribution towards maintenance was substantial and that there was a significant dependence on the deceased. A mutual dependency situation where some outgoings were discharged by the applicant and some by the deceased on a more or less equal basis or where the applicant’s payments outweigh those of the deceased will not be sufficient.

It is important that prompt action is taken if you feel that you have any grounds to make a claim against an estate. A time limit of six months from the Grant of Probate applies in relation to such claims.

Where a person is unable to create a Lasting Power of Attorney due to the fact that they no longer are able to understand the nature and implications of a legal document, an application may be made to the Court of Protection for the appointment of a Deputy. The Deputy appointed by the Court will then have the necessary powers to act on behalf of the person concerned. The Court will issue an Order setting out the extent of the Deputy’s powers. The powers may relate to financial matters or personal welfare issues. The powers granted will depend upon the needs of the person concerned.

We can advise you on all aspects of Court of Protection applications and prepare the necessary application papers on your behalf.

A Declaration of Trust can be used when two or more people purchase a property together and they have provided different capital sums towards the purchase. Contact our team of declaration of trust solicitors to find out more.

A Declaration of Trust can also record contributions made by third parties. For example, a parent might give a deposit to their child towards the purchase of their first home but want to safeguard the investment in the property in case the property is ever sold.

A Declaration of Trust is often prepared at the same time as a purchase of a property and it is important that the parties set out in writing their intentions of how the proceeds of sale of the property are to be dealt with in the future. It is important that a Declaration of Trust is prepared before any disagreements arise as its purpose is to safeguard all parties and make it clear to everybody how the property purchase was funded and how the division of sale proceeds will be dealt with. If you have already bought your property, a Declaration of Trust can still be drawn up provided your co-owner agrees.

When a Declaration of Trust is recommended:

• Property is purchased by two persons and they want to agree how the sale proceeds are to be divided in the future. A Declaration of Trust will ensure that the capital contribution of each is taken into account when the property is sold

• Property is held in the sole name of one person but he or she has had contributions towards the purchase price of the property from another person. A Declaration of Trust can then record the Contributor’s share in the property.

• Property is held by one person in their sole name but it has been bought for two people as their joint property to live in and both pay the mortgage jointly. The Declaration of Trust will then ensure that the property proceeds would be divided equally between the parties upon sale.

• Former matrimonial home originally held by husband and wife in joint names. After they divorce the husband is to be responsible for payment of the mortgage until sale. A Declaration of Trust will safeguard both parties’ respective interests in the property.

• Property in the sole name of one party – a Declaration of Trust would be prepared to recognise the contribution by another for improvements to the property.

A Deed of Variation is a document which effectively re-writes the terms of a deceased person’s Will or redistributes the estate in a case of intestacy. The Deed must be in writing and completed and signed before two years has elapsed from the date of death.

Tax planning

If you are considering inheritance tax saving opportunities for your family and you are a beneficiary of an estate, a Deed of Variation can be prepared. By leaving your share from the estate to your children, the benefit which you were due to receive does not form part of your own estate for inheritance tax purposes. Even if you were to die within seven years of the transfer to your children, it would not be counted as a gift on which inheritance tax would have to be paid.

Business assets

A Deed of Variation could be used as a tax saving method in relation to business assets. For example, where a person has died leaving a family company or business shares to his wife and his savings and other assets to his children tax may be saved. If a Deed of Variation was prepared to leave the business assets to the children and the savings to the widow then there would be no inheritance tax to pay as shares in a business can be free from inheritance tax because they qualify for business property relief and any assets passing to the wife would be spouse exempt. The widow could then use the cash to buy the shares from the children and therefore both the children and the wife would have the assets as originally intended but inheritance tax would be saved.

Until October 2007, an Enduring Power of Attorney could be created by a person (the Donor) whereby he or she could appoint an Attorney(s) to make financial decisions on his or her behalf. In October 2007, Enduring Powers of Attorney were replaced by Lasting Powers of Attorney. It is therefore no longer possible to create new Enduring Powers of Attorney but an Attorney given power under an Enduring Power of Attorney created before 1 October 2007 can still use it and apply to have it registered by the Public Guardian (see below).

An Attorney must:

• always act in the best interests of the Donor and consider their needs and wishes as far as possible.

• not take advantage of the Donor’s position to gain any benefit for themselves.

• keep the Donor’s money and property separate from their own and other people’s finances.

• after the registration, the Donor cannot end the Enduring Power of Attorney without confirmation from the Court.

• An Attorney cannot disclaim (retire) unless they give notice to the Office of the Public Guardian.

Registration of an Enduring Power of Attorney

The Attorney has a duty to apply to register the Enduring Power of Attorney as soon as he or she believes that the Donor is becoming or has become mentally incapable of making financial decisions for him or herself.

To register an Enduring Power of Attorney, certain prescribed relatives of the Donor may need to be notified and if they do not lodge an objection, the Public Guardian will register the Enduring Power of Attorney enabling the Attorney to act or to continue to act for the Donor.

We can assist you with the preparation of a Lasting Power of Attorney and registration. Contact our team of Lasting Power of Attorney solicitors for more information.

A person can leave up to £325,000.00 to friends or family free of inheritance tax, but any excess above this figure may be subject to inheritance tax at a rate of 40%. This allowance, called the “nil rate band” relates to the amount left to beneficiaries other than a spouse (or civil registered partner) or charities. Assets that are passed to spouses (or civil registered partners) or charities are free of inheritance tax, regardless of what they are worth. Contact our will and estate planning solicitors for more info.

There are various ways to save or minimise inheritance tax liabilities some of which are listed below:

• Make gifts

A person can give away up to £3,000 in each tax year, without being liable for inheritance tax, and the unused portion of the previous year’s exemption can be carried forward for one year.

It is also possible to give away £250 to any number of different people if the total gift to each person does not exceed £250.

There are also certain exemptions for wedding gifts.

• Give away surplus income

If a person has surplus income year on year, it is possible to give it away free of inheritance tax. It is necessary to show that the gifts are part of the person’s regular annual expenditure and that they do not reduce that person’s standard of living. It is best to keep records of these gifts and also the net yearly income.

• Make larger gifts

If a person gives away assets, cash or property in excess of £3,000 and if they survive for the period of 7 years after the gift, the gift will be free of inheritance tax. After a period of 3 years the beneficiary may get some tax relief and this will increase each year until the 7 year period has expired.

• Business property relief

Certain categories of business and business assets may qualify for a 100% exemption from inheritance tax. Professional advice should be sought to determine whether such relief will apply.

• Insurance

It is possible to arrange a policy of insurance to pay out a lump sum on death to cover an inheritance tax liability. The policy should be set up carefully to ensure that the proceeds of the policy do not form part of the estate to be subject to inheritance tax themselves.

• Use the transferable nil rate band

In October 2007, the Government announced that married couples, and civil registered partners, can now transfer any unused element of the nil rate band from one person to the other thus giving a joint nil rate band of £650,000. This means that spouses and civil registered partners will be able to transfer their unused nil rate band to the surviving person. When the first spouse or partner dies, their share of the home and any other assets can be transferred simply to the survivor. When the second spouse or partner dies, inheritance tax will only be paid if the total assets exceed the £650,000 threshold. This does not apply to unmarried couples. If a couple cohabits they can each use their own individual allowances of £325,000. They cannot leave assets worth more than £325,000 to each other without facing an inheritance tax bill. This could cause problems if one cohabiting person dies.

It is important to keep records following the death of the first spouse relating to their Will and estate and how much (if any) of the nil rate band was utilised on their death.

From 6 April 2017 an additional nil rate band, known as the residence nil rate band will be introduced. This will exempt the first £100,000 of the value of your home from inheritance tax, on the basis that it passes to a direct descendant. This threshold will rise by £25,000 every year to a maximum of £175,000 by 2020/21. You are also able to transfer any unused allowance between spouses/civil partners (in the same way as transferring any unused nil rate band). The potential benefit of this is that overall it could increase your inheritance tax allowances to a total of £1,000,000 (£500,000 each) for married couples and civil partners. If your estate is valued at more than £2 million, the residence nil rate band will be reduced (£1 for every £2 of the amount exceeding £2 million) to the point that it may not apply.

If you require further advice on this issue, however, please do not hesitate to contact us.

Sometimes people become incapable of managing their property and financial affairs or personal welfare and need someone to do this for them. A friend, relative or professional can be appointed to hold a Lasting Power of Attorney to enable them to act on that person’s behalf.

A Lasting Power of Attorney is a legal document whereby a person (the Donor) can appoint someone they trust (The Attorney) to make decisions on their behalf. It can be drawn up at any time while the Donor understands the nature and implications of the document but has no legal standing until it is registered with the Office of The Public Guardian.

There are two types of Lasting Power of Attorney:

Property and Affairs Lasting Power of Attorney

A Property and Affairs Lasting Power of Attorney enables the Donor to choose someone to make decisions about how to spend their money and the way their property and affairs are managed.

Personal Welfare Lasting Power of Attorney

A Personal Welfare Lasting Power of Attorney enables the Donor to choose someone to make decisions about their healthcare and welfare. This includes decisions to refuse or consent to medical treatment and deciding where they live. These decisions can only be taken when the Lasting Power of Attorney is registered and the Donor lacks the capacity to make the decisions himself or herself.

Registration

Before the Lasting Power of Attorney can be used it must be registered with the Office of the Public Guardian. The Lasting Power of Attorney can be registered as soon as it has been signed or its registration can be postponed until it is needed in the future.

Either the Donor or his or her Attorneys can apply to the Public Guardian to register the Lasting Power of Attorney. The application can be made at any time after the documents have been completed. Before the application to register the Lasting Power of Attorney is made, certain people chosen by the Donor may need to be notified of the proposed registration.

The Donors relatives will not be notified of the application to register the Lasting Power of Attorney unless they are named by the Donor as being persons who should be given notice. Anyone who has been notified can object to the Lasting Power being registered. Once the Lasting Power of Attorney is registered it continues indefinitely.

We can assist you with the preparation of a Lasting Power of Attorney and registration.

We can act for clients in the management of their financial affairs as financial solicitors. Members of the firm can be appointed as Attorneys or can apply to the Office of the Public Guardian to be appointed as Deputies where necessary.

If you or your relative resides in a residential home we can assist with:

• arranging for the monthly fees to be paid from your bank accounts.

• arranging rental of your property so that the rent can be used towards the payment of care fees.

• applying for all additional benefits to which you are entitled.

• selling your house if this is necessary.

• arranging a sale of shares and other investments.

• advising you and your spouse how joint assets and private pensions should be divided between you.

• making sure that if you are entitled to assistance with your care fees an application is made for your care fees to be funded.

When acting as Attorneys or Deputies, we can ensure that finances are correctly managed.

Any necessary accounts will be prepared as required by the Office of the Public Guardian and tax returns completed as necessary.

For some, obtaining Probate can be a bit of a daunting exercise: ‘do I need to apply for Probate or is the Estate exempt’? ‘If I do need to apply for Probate, how do I this and what information do I need to gather’?

We can help you with all these queries and the entire process.

When someone dies it is necessary for their estate to be dealt with. A person’s estate is made up of the money (cash), property and any possessions they owned at the date of their death – this includes property (houses/buildings) as well as shares, debts owed to and by the Estate etc.

The administration of the Estate involves collecting together all of the assets that the person who has died owned, paying any debts due and then administering (passing on) the Estate amongst the beneficiaries.

Usually an Executor will apply for Probate although other parties may do so (for example, an Attorney).

Unless the estate is very small (usually £5,000 but this depends on the type of assets to be dealt with), all money, property and assets in an Estate will be ‘frozen’ until the Probate Registry authorises someone to administer the Estate.

The authority from the Probate Registry is given by way of a document known as a Grant of Representation (or otherwise known as Grant of Probate). If the person who has died left a Will, the Will will usually state who the Executors will be and they are entitled to apply for the Grant of Representation. If there is no Will, a member of the family will need to apply for the issue of the ‘Grant of Representation’.

If there is a Will, the Estate will pass to the beneficiaries named in the Will. In the absence of a Will certain rules apply (known as the Intestacy Rules) which determine who is entitled to inherit the deceased’s assets.

If there is a property or land to be sold, a member of our Property team will be able to handle this on behalf of the Estate and will discuss with you the necessary steps to be taken.

Our Wills Estates and Planning team at Leeds Day are happy to provide guidance to relatives and Executors dealing with the administration of an Estate. We can advise on the following matters:

• Valuation of the assets.

• Application for the Grant of Representation.

• Payment of Inheritance Tax and assisting with and preparation of HM Revenue and Customs forms.

• Payment of liabilities.

• Finalising income tax affairs.

• Collecting in all assets and arranging sales as appropriate.

• Transferring assets to the beneficiaries where required.

• Payment of legacies due under the Will.

• Preparing final Estate Accounts for approval by the Executors and beneficiaries.

• Arranging for trust assets to be invested where a trust arises under the Will or intestacy.

• Making the final distributions of money and assets to the beneficiaries.

• Advising on Deeds of Variation and any other matters arising during the course of the administration.

The average cost for residential care in England and Wales is £1,200 - £1,500 per week, and anyone who has capital of more than £23,250 is classed as self-funding and will have to meet their own residential home fees.

When a person moves into a residential care home a capital assessment is undertaken to assess what assets they own. Any assets in that person’s sole name will be used towards their care. A one-half share of joint assets will also be taken into account. However, regarding the person’s home, if this is held by husband and wife in joint names whilst the other spouse continues to live in the marital home, the value of the house is disregarded for the capital assessment.

However, if the person who remained in the marital home dies, then the value of the house is released and may then be taken into account in assessing the funding of the care home fees.

If the person who remains in the marital home dies leaving all of their estate (including the house) to their surviving spouse, then all of the capital in the surviving spouse’s name will be taken into account in the financial assessment. The resident in the care home would then be liable to pay their own fees until their capital reduces to £23,250.

Disposal of Assets

If assets are given away or otherwise disposed of for an individual to try to put himself or herself into a more favourable position to obtain Local Authority funding for their care home fees, then the Local Authority may assess that person as if they still had the assets. The Department of Health Guidance to Local Authorities suggests that the timing and motive behind any transfer should be taken into account. Some Local Authorities have won cases even where the person gave away property up to 10 years before they needed the residential care, so considerable care should be taken if a gift like this is ever considered as an option.

Recommendation for Couples

Instead of the couple gifting their property to their children to try and avoid nursing home fees, they could consider making provisions in their Wills to ensure that upon the first death the deceased’s partner’s half of the property is placed in trust for their children/beneficiaries rather than passing directly to the surviving spouse. This means that if the surviving spouse then needs to go into a residential home only their own half share of the house is taken into account as the other half is within the trust and cannot be used for the care home fees. The joint ownership of the property would be amended if necessary and Wills would then be prepared for the couple to leave their shares of the property into a life interest trust allowing the other spouse to continue living there for the rest of their life.

On the death of the surviving spouse the half share of the property held in the trust can then be given to the children/beneficiaries of the Will.

Most properties and owners are registered at the Land Registry, the person (or people) who is the legal owner of the property is called the proprietor and their name is shown on the register of title to the property. If two or more people own the property together, they are shown on the register as joint tenants or as tenants in common. These are technical terms but their effect can be explained as follows:

• Beneficial Joint Tenants: This means that they own the property together in such a way that if one of them dies, his or her interest in the property passes to the other proprietor(s) automatically. No interest in the property will pass to the estate of the proprietor who has died nor can such a proprietor deal with the property in his/her Will. This is common where the joint proprietors are husband and wife.

• Tenants in Common: own the property together, but each is treated as having a separate share in the value of the property. Typically, each will share the value of the property equally, according to their number, a half share if there are two, a one third share if there are three etc. However, the proportions need not be equal if the proprietors agree some other arrangement, and it is possible for other people who are not shown on the register to share in the property as well. This kind of arrangement is often used where the owners have each put up money of their own to buy the property.

Severing the joint tenancy

Where two or more proprietors hold property as Joint Tenants, it is possible for them to alter the way in which they hold the property so that they become Tenants in Common by severing the joint tenancy.

Restriction

Where property is held by Tenants in Common, including the case where Joint Tenancy has been severed the Land Registry must by law put an entry on the register, known as a restriction.

Purpose and effect of the registration

The purpose of the registration is to safeguard the rights of the people who may have an interest in the property but who are not themselves proprietors (such as those to whom property has been left by a proprietor who has died). The restriction makes it clear that there must generally be at least two people to share the responsibility of making sure that the money received on a sale or other dealing with the property is correctly dealt with.

Examples where a joint tenancy may be advantageous:

• Parties own jointly and want the survivor to automatically become sole owner without need for obtaining Grant of Probate

• Unmarried couple – separate finances – unable to agree on terms for Wills but wanting to make sure that whatever happens the house goes to the survivor

Examples where tenancy in common may be preferable:

• Parties wish to keep finances separate – eg a married couple who are getting divorced who wish to avoid the survivor automatically becoming the sole owner and wish to leave their share by Will.

• Engaged couple – deposit coming from one set of parents wishing to have separate shares at least until they are married. We would also recommend that the couple sign a Declaration of Trust which sets out the contribution by the parents and the separate shares in the property

• Mother, son and daughter-in-law buy a house jointly – as between mother and her co-owners there would be a tenancy in common (ie so that the mother’s share could pass on her death under her Will to all her children equally) even though the shares owned by the son and his wife could be held as joint tenants. Again we recommend that the different shares are detailed in a Declaration of Trust

• Elderly couple – who may need nursing home care and who want to safeguard all of the property passing to the survivor and being used for nursing home fees

Trusts can be created during a person’s lifetime or by their Will. Leeds Day can act in the creation, administration and termination of trusts. Trusts can be created for a variety of reasons.

Life Interest Trusts

A trust may provide for a person to use or receive the income from an asset or property whilst the preserving the actual asset or property for the benefit of someone else at a later date. This is a trust often used in Wills where the person making the will perhaps wishes to provide for a spouse from a second marriage. The second spouse would then be able to remain living in the home on the basis that the house is to then pass to the children of the first marriage on the death of the second spouse. This type of trust can also protect part of your home from residential care home fees.

Accumulation and Maintenance Trusts

Trusts may also be created for the benefit of children if they are too young to own assets themselves.

Discretionary Trusts

Where the person creating the trust delegates the decision as to who will benefit from the trust to others known as the trustees. This type of trust may be used in a situation where the person creating the trust is not sure what the needs of his family members may be in the future and wishes to leave maximum flexibility for decisions to be made at a later date. This may be useful where one of the beneficiaries may not be able to manage their own financial affairs.

The administration of trusts may involve the preparation of trust accounts, dealing with tax implications for the trust and advising the trustees of their duties.

The termination of a trust may arise on the death of a beneficiary or when children reach an age at which they can receive assets or property themselves. The trust may also come to an end when the trustees decide to transfer the money or property to beneficiaries in accordance with their discretion. Members of the Wills and Probate Department of Leeds Day can assist and advise clients in relation to trust matters

When to make a Will

Will writing is one of the most important things you can do for your family and we therefore recommend that everybody should:

• Write a Will that is valid and meets all the legal requirements.

• Update a Will. We recommend that you review your Will regularly and if your personal circumstances have changed you either write a new Will or prepare a smaller document called a Codicil to reflect your change in circumstances.

Why it is important to make a Will?

It is important for you to make a Will whether or not you consider you have many possessions or much money. It is important to make a Will because:

• if you die without a Will, the intestacy rules dictate how the money, property or possessions should be allocated. This may not be the way that you would have wished your money and possessions to be distributed. Your spouse or partner may not inherit everything you leave.

• unmarried partners or partners who have not registered a civil partnership cannot inherit from each other unless there is a Will, so the death of one partner may create serious financial problems for the remaining partner.

• if you have children, you will need to make a Will so that arrangements for the children can be made if either one or both parents die.

• it may be possible to safeguard part of your property not being used for nursing home fees if one spouse is in a residential home and the other spouse living in your house dies.

• if your circumstances have changed, it is important that you make a Will to ensure that your money and possessions are distributed according to your wishes. For example, if you marry this will make your previous Will invalid.

What should be included in a Will?

To save time and reduce costs when going to a Solicitor, you should give some thought to the major points which you want included in your Will. You should consider such things as:

• how much money and what property and possessions you have, for example, property, savings, occupational and personal pensions, insurance policies, bank and building society accounts, shares.

• who you want to benefit from your Will. You should make a list of all the people to whom you wish to leave money or possessions. These people are known as beneficiaries. You also need to consider whether you wish to leave any money to charity.

• who should look after any children under 18.

• who is going to sort out the estate and carry out your wishes as set out in the Will. These people are known as the executors and trustees.

• Questionnaire – this may help you to decide upon your wishes.

Who are the executors and trustees?

Executors are the people who will be responsible for carrying out your wishes and for sorting out the estate. They will have to collect together all the assets of the estate, deal with all the paperwork and pay all the debts, taxes, funeral and administration costs out of money in the estate. They will need to pay out the gifts and transfer any property to beneficiaries. Once they have completed the administration of the estate and if there are trusts arising from the Will and they hold assets for the benefit of beneficiaries, the executors are then known as trustees.

Who to choose as executors?

It is not necessary to appoint more than one executor although it is advisable to do so, for example, in case one of them dies. It is common to appoint two, but up to four executors can take on responsibility for administering the Will after a death. The people most commonly appointed as executors are:-

• Relatives or friends

• Solicitors or Accountants

It is important to choose executors with considerable care since their job involves a great deal of work and responsibility. You should always approach anyone you are thinking of appointing as an executor to see if they will agree to take on the responsibility. If someone is appointed who is not willing to be an executor, they have a right to refuse.

If an executor dies, any other surviving executor(s) can deal with the estate. If there are no surviving executors, legal advice should be sought.

What are the Key Terms of a Will?

A Will includes the following clauses:

• Revocation – as soon as the Will is signed all previous Wills are revoked and therefore are no longer valid.

• Appointment of executors and trustees.

• Gifts – you should consider whether you have any legacies or items to be given to any beneficiaries. Normally the gifts are free of inheritance tax and if there is any tax to pay it is payable by the residuary estate.

• Trust – sometimes Wills include trusts. These could be for example discretionary trusts or life interest trusts or accumulation of maintenance trusts. Trusts are used to protect part of your estate and mean that the beneficiaries do not receive the gifts outright. The assets in the trust may be payable to the beneficiaries at the discretion of the trustees (this is a discretionary trust) or held on life interest for the benefit of the life tenant such as being given a right to occupy a property for the rest of a person’s life (life interest trust) or provide for minor beneficiaries’ interest in the estate to be held for them until they attain the age of 18 (accumulation of maintenance trusts).

• Residuary estate – the residuary estate means that all the assets in the estate will be collected together, out of these all the legacies, outstanding bills, funeral expenses and taxes will be paid out first, whatever is left after such payment is called a residuary estate.

Normally the residuary estate is left to the surviving spouse but you also need to consider what is to happen if your spouse has died before you.

If the estate is then divided between a number of beneficiaries, is it divided equally between them or do you want each of them to have a percentage. You also need to consider what would happen if those named beneficiaries died before you, would you wish their share of the estate to go to their children or to the other remaining beneficiaries?

• Administrative clauses – the Wills will also include administrative powers to enable the executors and trustees to administer the estate as efficiently as possible.

• Finally the Will includes the signing clauses. It must be signed and dated and the testator must sign the Will in the presence of two independent witnesses who also sign and add their name, address and occupation. Please remember that a beneficiary or the married partner of a beneficiary must not witness the Will as if they do the Will is still valid but the beneficiary will not be able to inherit under the Will.

As soon as the Will is signed and witnessed it is complete.

Change of circumstances

When a Will has been made, it is important to keep it up to date to take account of changes in circumstances. It is advisable for you to reconsider the contents of a Will regularly to make sure that it still reflects your wishes. The most common changes of circumstances which affect a Will are:

• getting married, remarried, or registering a civil partnership.

• getting divorced, dissolving a civil partnership or separating.

• the birth or adoption of children, if you wish to add these as beneficiaries in a Will.

How to change a Will

You may want to change your Will because there has been a change of circumstances. You must not do this by amending the original Will after it has been signed and witnessed. Any obvious alterations on the face of the Will are assumed to have been made at a later date and so do not form part of the original legally valid Will.

The only way you can change a Will is by making:

• a Codicil to a Will; or

• a new Will

Codicils

A Codicil is a supplement to a Will which makes some alterations but leaves the rest of it intact. This might be done, for example, to increase a cash legacy, change an executor or guardian named in a Will, or to add beneficiaries.

A Codicil must be signed by the person who made the Will and be witnessed in the same way. However, the witnesses do not have to be the same as for the original Will.

There is no limit on how many Codicils can be added to a Will, but they are only suitable for very straightforward changes. If a complicated change is involved, it is usually advisable to make a new Will.

Making a Will

If you wish to make major changes to a Will, it is advisable to make a new one. The new Will should begin with a clause stating that it revokes all previous Wills and Codicils. The old Will should be destroyed. Revoking a Will means that the Will is no longer legally valid.

Destroying a Will

If you want to destroy a Will, you must burn it, tear it up or otherwise destroy it with the clear intention that it is revoked. There is a risk that if a copy subsequently reappears (or bits of the Will are reassembled), it might be thought that the destruction was accidental. You must destroy the Will yourself or it must be destroyed in your presence. A simple instruction alone to an executor to destroy a Will has no effect. If the Will is destroyed accidentally, it is not revoked and can still be declared valid.

Although a Will can be revoked by destruction, it is always advisable that a new Will should contain a clause revoking all previous Wills and Codicils.

What next?

If you have not made a Will before and wish to do so or wish to update your existing Will then please contact us to discuss your particular circumstances. We will then take your instructions and prepare a draft Will for your approval and will send the final version for you to sign, with clear instructions on how to do this, after which we must check that the Will has been signed correctly. Once you have made your Will it can be stored in our offices for safekeeping at no extra charge to you and we will then give you a copy of the signed document for your own records.

And afterwards?

You should review your Will periodically to ensure that it remains relevant to your circumstances.