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Mutual Wills

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Mutual wills are wills made between multiple parties in which they are making some mutual benefit to the other parties and the parties involved agree that the wills cannot be revoked with the consent of the others. On the death of any of the parties the survivors will be bound by the terms of the mutual wills. Mutual wills are most commonly made between spouses, gifting assets to each other on first death and then over to children on the death of the second. Whilst all parties are alive, they can change their minds at any time and revoke the mutual wills. Once one party to this agreement dies and the others accept their benefit from the deceased’s Will, the agreement not to revoke becomes binding on the other parties. On the face of it, this seems beneficial, however mutual wills have numerous issues. There is no flexibility for the…

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Setting up a Will-Based Trust After Death

By | Trusts, Wills | 2 Comments

It has been brought to our attention that there are some misconceptions in regards to what action needs to be taken for a Will-based trust after the death of the Testator. The following article is intended to clarify these points. A trust in a Will, such as a Protective Property Trust, Flexible Life Interest Trust or Discretionary Trust, is not automatically set up on the death of the client. The Will trust is not itself the trust, it is more of a direction that a trust of those terms is set up upon the client’s death. There are further actions which need to be taken by the executors upon the Testator’s death in order to set up the trust and clients should be made aware of these steps. A formal trust deed would need to be drawn up on death to create the trust. This will most likely refer to…

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Witnessing a Will

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Arguably the most essential step when making a Will is the attestation of the Will itself, as all Wills must be signed and witnessed for them to be valid. Along with the testator signing the Will, their signature must be witnessed by two independent people. This means that the witnesses must not be a beneficiary, or the spouse/civil partner a beneficiary of the Will. If a beneficiary, or their spouse/civil partner witnesses the Will and the testator subsequently passes away before the error is rectified, the legacy made to that beneficiary will be declared void, rather than invalidating the Will entirely. If, however only one person has acted as a witness to the Will, then the Will would be invalid as section 9 of the Wills Act 1837, states that two or more witnesses must be used. It is not a legal requirement that a Will should be dated for…

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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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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

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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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Organ Donation

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Organ Donation It is a fairly common request from clients for their Wills to include a statement in regards to their organs being donated for transplant purposes after their death. Such can be included in the Will using the following wording: ‘If practicable I request that my body or any part of it may be used for therapeutic purposes.’ Please note that this wording only allows for organs to be donated for transplant purposes, and does not extend to donation for medical research. This wording could also be limited to exclude certain organs, for example eyes. Requesting that organs are donated for medical research is less common but can be included in the Will with the following wording: ‘If practicable I request that my body or any part of it may be used for the purposes of medical education and research.’ Alternatively, clients may wish that their body be used…

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Marriage, Divorce and Wills

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Pending Marriage   One of the most overlooked facts regarding UK Wills is that marriage revokes any current Will the testator has at the time. Most ‘Newly Weds’ do not consider re-visiting their Wills immediately after marriage to ensure that they are still valid and in most cases, the answer is no.   There are provisions that can be made within a Will to ensure that it is not revoked upon marriage, giving the happy couple one less thing they need to consider at such a stressful point in their lives. If you see an unmarried couple, one of the first things you should ask if whether or not the clients are expecting to marry. There is no time period that is considered too soon or too late to include this within a Will, as long as the clients have a valid Will that will not be revoked.   Divorce…

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