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Time Delays

By | Drafting, Taking instructions | No Comments

The issue of time is a problem which nearly all Will Writers will face, most commonly due to the age or health of the testator. The case of White v Jones [1995] highlights this issue. A Solicitor took instructions and was found to be negligent because more than 40 days had passed, from the taking of the instructions and the client then dying before the Will was produced. When instructions are taken and submitted to us, any health and age issues must be clearly highlighted to us so we can ensure that there are no time delays in producing the documents. With issues such as these, we would hasten the drafts as best we can. We also combat these issues with a draft term of 10 working days for all cases that have not been expressed, with even shorter draft terms for the expressed cases to ensure the service requested…

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Second Death Gifts

By | Gifting, Inheritance, Wills | No Comments

Many couples making Wills wish to leave bequests of particular items, sums of money, or a share of their estate, but only when both testators have passed away. So how can we ensure this happens? The way to ensure that a gift is only made on second death is to place the gift(s) in both Wills, and ensure there is a condition that states the gift should only be made should the partner/spouse has predeceased the testator. For example, ‘If my wife Susan Smith has predeceased me, I give…’. When making a second death gift, the testator is giving this gift to their partner/spouse on their death as part of the Residue of their estate, therefore on the death of the survivor, the gift is made payable from the survivor’s estate. If the clients have requested a second death gift in their Will, but it has only been placed in…

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Hotchpot

By | Inheritance, Property, Wills | No Comments

For parents who have more than one child, it may be necessary during their lifetime to make monetary advances to help a particular child or children but not all at that time. For example; the purchase of a house or to help clear a debt problem. The advancement can be either be made as a gift or a loan. Upon the death of the parents, in most cases they would wish for all of the children to have benefitted the same so that there is no unfairness felt between the children. The above can be achieved simply by the inclusion of a ‘Hotchpot’ clause within the Will. Whether the advancement was made either as a gift or a loan is irrelevant because the clause will work in the same way. The Hotchpot clause relies on the testator keeping a record outside of the Will of any gifts made and in…

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Discretionary Trusts

By | Property, Trustees, Trusts | No Comments

The Discretionary Trust is a common Trust for a Testator to use for their children to ensure that they do not inherit directly from their estate. The reasons for this can vary, for example, protecting assets from potential divorce, drinking or gambling issues, or the testators may wish that their assets are distributed in a particular manner or at certain points in their children’s lives that are outside the capabilities of the Will itself. This type of trust is effective because the assets are held and managed by the Trustees to distribute to the beneficiaries at their own discretion, hence the name of the trust and just because a beneficiary is named under the trust does not mean that they are absolutely entitled to any assets – useful where the Trustees may have concerns over how the money may be used.  Where beneficiaries are named under the Trust; this can…

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WillPack

PPTs: Concerns with Mortgages and Equity Release

By | Trusts | One Comment

PPTs: Concerns with Mortgages and Equity Release PPTs and Mortgages Should clients wish to use Protective Property Trusts (PPTs) in their Wills with a property that is subject to a mortgage, they should be aware that a share of the property cannot enter a PPT on first death as technically until the mortgage has been settled the clients do not fully own the property. The most simple solution to this would be to ensure that both clients have life cover in place to cover the mortgage on first death. Alternatively, if the Residuary Estate would have enough assets to fully cover the mortgage on first death, the Executors could use the Residue to pay the outstanding mortgage off. If on death there is still a mortgage on the property and neither of these are possible, the survivor does still have limited options; They can sell and downsize if the PPT…

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WillPack Administrative Procedures

By | Admin | No Comments

Administrative Notes   Please find below some general notes on the administrative procedures that WillPack use. These procedures help us to provide the best possible service in the shortest possible timeframe. If you would like to discuss these procedures, please contact us at info@willpack.co.uk. Submission of Instructions: Unfortunately, our online instruction form is currently inoperative and, as such, instructions should be submitted by post (to WillPack, Chancery House, Whisby Way, Lincoln, LN6 3LQ) or email (to info@willpack.co.uk). Please do not email instructions to individual members of the team as this can cause unnecessary delays in receipt and processing. If you opt to send your instructions by email, please note that we have a limit on our mailbox of 10MB. This means that if your attachments are larger than this, we will not receive the email and, unfortunately, you will not receive a notification telling you this. We therefore recommend the…

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Missing Persons

By | Trustees | No Comments

Where a client has a close family member who is missing, there are a number of issues that you should be aware of. If a person has been missing for 7 years or more, family members can apply to the courts for a declaration to state that a person is presumed dead. Family may have already completed this, in such case your client will likely not wish to include the missing person (any gift to them in the Will would in fact fail, as they are presumed dead). If no declaration has been made and the client may wish to exclude the missing person completely from the Will. If he was to reappear, the client should be advised of the possibility of a 1975 Act claim. A claim under the act does need to be made within 6 months of a grant of probate or letters of administration and will…

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WillPack

Executors & Trustees

By | Executor, Trustees, Wills | No Comments

Many Testators will choose the same people to act as both their Executors and Trustees, however each role is very different and comes with its own responsibilities so this may prompt testators to consider appointing different individuals for each appointment. Firstly, those who will deal with the administration process of the Estate – the Executors, and those who will manage any assets which are required to be held once the administration of the Estate is complete – the Trustees.   Where necessary and upon the death of the testator, the duty of an Executor is that they shall apply to the Court for a Grant of Probate. This enables the Executor to accumulate the assets and where it is appropriate, liquidate assets to enable distribution, in accordance with the terms of the Will. Before distributions, they must ensure that any debts and liabilities have been settled. The role could include…

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Wills abroad

By | Wills | No Comments

Wills Abroad Most, if not all WillPack members come across clients with assets abroad at some stage during their estate planning career. When this happens, the most important questions you can ask is, ‘what assets do you have overseas?’ and ‘do you have a Will in the respective country?’   If a client has real estate abroad, it is important the client is advised to seek advice in the country the property is situated in and seek a Will to deal with the estate in this country, if they have not done so already.   In the case of the client not having a Will in that country at the time of making the UK Will, WillPack can prepare Wills to deal with Worldwide assets. This ensure that the client has a Will that can be brought forward to foreign courts to consider the terms of the Will. However, it…

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Lost Wills

By | Will Storage, Wills | No Comments

Should it be the case that a Will cannot be found by family members after death, it is possible for a copy of the Will to be submitted for probate. This would be a complex procedure, with the Executors providing very detailed evidence that the copy is true to the Testator’s intentions and that the original Will was attested. Matters will be made more complex if the last known location of the Will was in the Testator’s possession. In such a case, a presumption arises that the Testator has destroyed the Will with the intention of revoking it. This presumption is rebuttable by showing enough evidence of non-revocation. The exact amount of evidence required will vary from case to case, as the strength of the presumption of revocation varies depending on the level of security, or lack of it, of the Testator’s custody of the Will. The safer the Testator…

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