Revoking a Will

Revoking a Will

By | Drafting, Wills | No Comments

There are four ways that a will may be revoked. Marriage/Civil Partnership As a general rule, a marriage or formation of a civil partnership revokes any will that a testator made before the marriage or civil partnership under S18 and S18B Wills Act 1837 respectively. There are however some exceptions to this rule. If it appears from the will that at the time the will was made the testator was expecting to be married to, or from a civil partnership, with a particular person and the testator intended that the will should not be revoked by that marriage or civil partnership, the will would not be revoked. It is currently unclear whether a will can be written to be in anticipation of either a marriage or civil partnership to a particular person, for example for a same sex couple who wish to formalise their relationship but currently have not decided…

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What Cannot be Gifted by a Will

What Cannot be Gifted by a Will

By | Gifting, Wills | One Comment

A person’s will can deal with most property that they own at the time of their death. However, there are a number of assets that would not pass into a person’s estate at their death. Life policy proceeds Life policy proceeds may form part of a deceased’s estate and can be gifted by their will. However it is relatively common for these to be placed into trust so that they do not form part of the deceased’s estate. The intentions behind this are: As the proceeds are outside of the estate, they do not need to pass through probate and therefore the beneficiaries can receive the proceeds sooner. By placing the proceeds in trust, those proceeds will not be taken into account when inheritance tax is calculated (unless it is in trust to pay off a mortgage). If life policy proceeds are in trust, clients should contact their policy providers…

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Mutual Wills

By | Wills | No Comments

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 without 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

By | Wills | No Comments

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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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 | One Comment

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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