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NALP Unit 32 - Wills and Succession

NALP Unit 32 - Wills and Succession

NALP Unit 32 - Wills and Succession

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with Sue Ioannou

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Description

Unit 32 – Wills and Succession for Paralegals is one on the optional technical legal knowledge units for those studying towards a Level 3 qualification recognised and awarded by The National Association of Licensed Paralegals (NALP).

This unit aims to provide the learner with the knowledge to understand the operation of wills and succession. In understanding the procedure and practice of Wills and Succession, the learner will be able to effectively assist in Wills and Succession matters in a solicitor’s firm, a paralegal firm or other alternative business structure. In particular, the role of the Paralegal in taking effective instructions will be particularly useful in the workplace. This unit enables progression on to the NALP Level 4 Wills and Succession Unit, for those learners who wish to offer services in this area of law.

This unit comprises a comprehensive workbook developed by NALP which provides all of the information that leaners will need to meet the learning outcomes detailed below.

Also, Datalaw have designed several short webinars focusing on key aspects of the syllabus for this unit to help explain and contextualise the material provided in the workbooks.

Delivered by Sue Ioannou of A.r.t. Wills, the webinars within this unit cover following topics:

1. Intro to the Law of Wills

2. Common clauses and their effect

3. Types of gift

4. Attestation Clauses

5. Alterations and additions

6. Revocation

7. Intestacy

8. Roles of the Executors and Trustees

What you'll learn

Learning Outcomes
1. Demonstrate a thorough understanding of the formalities of a valid will in English Law
2. Identify and describe the main elements of drafting a will and use legal terminology appropriately
3. Know the legal principles of revocation or alteration of a will or codicil
4. Understand the law relating to testamentary dispositions and their effect
5. Understand the operation of the statutory rules of Intestacy
6. Understand the role and powers of Personal Representatives
7. Understand the law in relation to grants of representation
8. Understand the provisions of the Inheritance (Provision for Family and Dependants Act) 1975 in respect of claims under the terms of a will and under the intestacy rules

Requirements

Once learners have reviewed the NALP workbook and supporting material supplied by Datalaw, they will be ready to request the assignment for this unit. The assignment consists of a written piece of work which learners have 4-weeks to complete.

Who is the target audience?

Current and prospective paralegals

Course Content

Recorded Webinars

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Webinar

23:39

Hello. My name is Sue you a new on this short Webinar will introduce you to the law off wills. So we're going to first of all, look at what a will actually is what the requirements are for a will to be valid what the requirements are for a will to be admissible to proof on you'll see that they are two different things Who could make a will? The test for capacity to make a will Statutory wills, privileged wills the aims and advantages of making a will on. Then briefly, we're gonna look at how will can be revoked. Right? Okay, so let's first define what a will actually is. But will can be described as a written legal declaration Often individuals intentions as to how he or she wishes to dispose of their property after death. So two things toe note there, first of all, is only applicable on Death only takes effect when the test data dies. On as such, it's what we call a living document so it can be updated, changed or revoked at any time during the test data's lifetime, provided they have the mental capacity to do that. Right? So what makes a will valid. So you may have come across section nine of the wills Act 18 37 in your studies on its that section that looks at the what makes a will valid on also what makes a will admissible to proof. So first of all, we're gonna look at what makes the will valid on this is what the one of the things that the probate registry look for when the will is submitted to them for the probate process. So the first thing is that the will has to be signed by the test data or some other person in his presence and at his direction. The test data has to sign the will in the usual signature. But any signature will do, provided it could be proved that the test data intended to give effect to his will by the signing off the will. That signature should be made or acknowledged by the test data in the presence of two or Mawr witnesses. Both presence at the same time, so each witness then signs or acknowledges their signature in the presence of the test data. But they don't necessarily have to sign in the presence off each other, so the witnesses must be able to see the test A to sign. Therefore, they must not be blind. Okay, So examples of acceptable signatures So a will signed by a mark. So it could be that the person signing the will is either unable to sign the will because they may be they illiterate. They cannot read or write, or they could have a physical impairment which prevents him from signing the will. So I've seen some wills whether been signed with a cross and that's absolutely fine. Asl long as the test data intended to give effect to the will, um, an incomplete or thio indecipherable signature is also acceptable again as long as the test data intended to give effect to the will buy it. Ah will signed by some other person in the present solve and at the direction of the test data. So in these circumstances, it may be signed by the other person, either in their own name or in the name off, Right? So, for example, I had a client a few years back, went to see him to sign his will on he was just out of hospital recovering from pneumonia. And he asked me if I would sign the will on his behalf because he was feeling quite weak that day. So I signed it. Um, I saw and s a u r new on behalf off Fred blocked, and it was still witnessed in the presence of the two witnesses. He sadly died shortly afterwards. And that will was accepted by the probate registry without any further evidence a will signed in foreign characters or in shorthand, that's accepted. I've seen wills have been signed in Chinese characters. Um, Greek characters, Arabic characters, a strong as the test data understood the will. So, for example, if the world is in English but the the the they've signed in Greek characters, the attestation clause should reflect the fact that the will was read over to them either in Chinese or in English, and they understood it. So, for example, I have a Greek Cypriot client who he's he can understand English, but he can't read or write it. So I read the will out to him in English, and he perfectly understood that. But when he signed it, he signed it in the Greek characters. Ah, well signed with words such as Mum or Your Loving Mom. One of my previous life, I was a manager at the London Probate Registry. So this is unexamined pull of one of the wheels that I saw when I was working there on That was it went to the district Judge and he decided it was a perfectly valid signature because the will was talked about her Children on. There was no doubt as to who that signature belonged to, because those Children only had one mother. But that was certain, quite uninterested in concept on then. I remember this case quite well because it was in 1992 and it was shortly after I started my life of the London Probate Registry. Now, this case, on the face of it, it didn't have a signature by the test data, but it went to court on what had happened in this circumstance. Was this person had written out there will in handwriting on that started off by saying, This is the last will and testament of May and put what wrote their name on. Then they went to write the whole will out, and it was all done in one transaction in the presence off the two witnesses. So once the tests they'd had got to the end of the text, they didn't sign it again, but they handed it over to the witnesses for them to sign. So in that case, that set a precedent for any will that his hand written And it has been written in one transaction in the presence off the two witnesses. That was seemed to be a perfectly valid signature, right? So what makes a will admissible to prove so again, such a nine of the wills act says there will to be entitled to proof. Now, the word probate is a Latin word and means proof. Um, it says it must be writing so it could be in handwriting. It could be printed. It could be type. It could be any form of visible writing provided it can be deciphered or translated so it could be in a foreign language. It could be in a code. It could be enbrau. Um, it could mean shorthand. So as long as there is a way of off deciphering the code or translating any language, it has to then make a gift of property in England and Wales. Andi or Ah point or attempt to appoint an executor. Um, there is one exception to this. There's always an exception to the rule. You can have a will which purely appoints guardians for Children on That's permissible by Section five of the Children Act 1989. So and bearing in mind that The Guardian, uh, stated only appoint guardians for a child that they have parental responsibility for. So that will be the subject, possibly of another webinar. No, it's just the point you need to bear in mind. Okay, So who can witness the will? So now we're looking at Section 15 off the wills at which states that the witnesses should not be beneficiaries named in the will or the spouse is or civil partnership partners of such beneficiaries. Also, the witness has toe have mental capacity on understand the nature of what they're doing. So someone witnesses the will and later on later on, marries or enters into a civil partnership with the beneficiary. That's totally acceptable. It's only if they were married or in the civil partnership at the date that the will was signed. Contrary to popular belief, witnesses do not have to be over the age of 18 but they just have to be capable, as I said previously, of understanding the nature of the document that they are witnessing on the implications of doing that. So the witnesses are there to ensure that the test data is making his will off his own volition. On that, nobody is coercing him into doing it, so the witnesses don't have to see the content of the will. Onda. Over the years, I've had quite a few clients raised concern about Oh gosh, I don't want my friends, neighbors or whoever to see my will. It's got nothing to do with them on. I say they don't have toe. All they're doing is witnessing your signature on there may be asked to confirm that it was you that put that signature on the paper. So if the attestation clause is on the same page as some of the text of the will, I would generally just cover that up so that the witness couldn't see it. The witnesses are bound by law to give the probate registry, the police, any other court or any other authority any information regarding the execution of the will. Now, when I was working at the probate registry, very often we would call witnesses in to give evidence on certain things so we would write to them and say We need you to come in on a certain date on. Sometimes the witnesses wouldn't turn up, so we'd get in touch with them again. On on a few occasions, we've had people saying, Oh, no, no, no. I don't want to get involved with that on We said, Well, actually, you are bound by law to do this. Andi, if you don't come, we can issue a subpoena, which means you could be arrested and brought to court. Um, usually, by that time they've agreed that they will come in, but they always or express the concern that well, if I had known this, I would never have agreed to be a witness. So in fairness to my clients, when I send out the draft will I asked the client to consider who they might want. Is there witnesses? Andi, I sent some information about what the role and responsibility of the witnesses, and I asked them to pass that on to their witnesses just to get their agreement before they act in that capacity. Now, I usually supervise most of the executions of my wills. Sometimes I act as the second witness, but that gives me the opportunity then to discuss with the other witness what the role and responsibility is, and just to note the file that they agreed to do that. But who can make a will then? Right? So anybody who has the relevant capacity so they must have mental capacity on they must be over 18 now. Yet again. There are exceptions to both of those rules on. We'll discuss those later on but the test for mental capacity. So it could be that you've already come across the banks and Goodfellow tests during the course of your studies on this is the case back in 18 70 where the judge set out the requirements, thought the test data in respect off making their will. There are four elements to the banks and Goodfellow tests, so the test data must understand the nature and effect of the act. So the act being the act of creating the will on its effects the extent of the property off which the test data is disposing, although just abroad recollection is enough. So, for example, if the client and tell you what I've got a house, I've got some shares. I've got a car, got a little bit of money in the bank. That's a broad recollection, and that's absolutely fine. The claims to which the test data ought to give effect so I e. The persons who are fitting off the test AIDS has bounty or rather, those save benefit. So there are certain people that you would expect a test data to make provision for in their will. But quite often, clients, for whatever reason, don't want to make provision for those people. But we have to be satisfied that the test data has considered them but has admitted them for whatever reason. And if they have decided to leave somebody out and you believe that that person may make a claim in the future is a good idea to encourage your client to write a letter explaining why they've left that person out of the will because we don't want that person to go after the court to say, Oh, he didn't have capacity at the time. He forgot about me and you know he wasn't aware of me because he'd lost capacity. So if that happened, then the letter that the test data drafted could be produced to the court as evidence from the grave. If you like to support the reason why they left that person out of the will on, then the last thing that test data should not have any insane delusions affecting his ability to make his will. Okay, so I mentioned earlier. There are two exceptions to the rule regarding mental capacity. The first one is a statutory will. So if a proposed test tater is not mentally capable of making a will, then there are provisions under the mental capacity at 2005 on the Court of Protection Rules 2000 and seven, which allow the court of protection to authorize a will on his or her behalf. So in order for a statutory will be made on the applicant has to be the applications made to the course protection. It can't dispose of immovable property outside of England and Wales because, generally speaking, immovable property outside of England, wealth is governed by the law of the place where it is rather than the law of the place where the test data was domus old when they died. So the court can authorize a will on the on terms that the patient would have made if they had acted reasonably on obtained, competent legal advice. But what the court is saying is if somebody could produce evidence to the court that this particular time in a period of time, the test data would have either made a will or change there will than the court of protection is able to authorize that will. So the application would usually be made either by a deputy appointed by the court protection to manage somebody's financial affairs or by a attorney under a registered, lasting power off attorney. If the test data hasn't got either of those people in place than anybody who is looking out for, his best interests can make that application to the court of protection. But the as I said the the applicant would have to have evidence to convince the court that hit the test data would have changed their will at that time, right and then the other exception is theeighties. So we talked about a test data has to be at least 18. But there is this thing called a privileged Will on this is set down in this section. 11 of the Wheels act on the Wills Soldiers and Sailors Act 1918. These acts state that a member of the armed forces as long as they are on active military service, they may make a will if they are age 17 or over. Generally speaking, someone could go into the military younger than 17 but they're not generally put on active military service until they're 17. So when they get to 17 provided their own active military service, they can make a privileged will. This is made in a calls with a different set of rules and regulations. So, for example, it doesn't have to be in writing on. It doesn't have to be witnessed. So if, for example, I'm 17 years old, I'm in the barrack. The sergeant major comes in and says to me like you are now, get yourself ready. You're going off to Afghanistan. So from the moment he says that, too, May I am now on active military service. So I turned to my colleague and I say if anything happens to me Please make sure that everything goes to my Children. I've done it. I've made my privilege will. So even if I come back from that will is still valid unless I revoke it. So it can be a za said in writing. I could write it all down. Ondas long was I was on active military service at the time I wrote it. I don't need to get it with Okay, so the aims and advantages of making a will. So the main reason people want to make a will is to avoid the intestine. See rules. Um, if you've watched the webinar on in testis e, you'll understand how that works. If you haven't, then I suggest that you watch that webinar so will allows the test data to choose the people that would administer their estate. Whereas the intestine see rules. It z laid down within section 46 of the will of the administration of the States at 1925 on. That may not suit the person so they make their will and they appoint their own executives. They can choose and appoint guardians. There is no option under in testis e for anybody used in a point audience. They can also make adequate provision for their spouse or civil partner for their Children. For their common law spouse Let Children on other dependents. So under in testis, EEA, spouse or civil partner is only entitled to the 1st £270,000 plus 50% of the balance. So if you want your spouse to benefit from or than that, then you need to make a will. They can also benefit common law spouses and step Children because under the intestine, see rules step Children are not plasters Children on. There is no concept of a common law spout so that under intestine see they would not automatically be entitled for everything. They can also make provision for pets, make charitable request on potentially reduce inheritance tax. So there are ways that you know, depending on the way the world is worded, you could reduce and inheritance tax liability. Then they could create trust to protect assets and also to protect various family members. The revocation. Then a will can be revoked, which means canceled at any time during the test status. Lifetime ASL, long as he or she has the requisite capacity to revoke it, so will may be revoked by marriage or civil partnership. You can put a clause in the will that says that this will will not be revoked If I marry or enter into a civil partnership with a particular person, Um, it can be revoked by destruction. So as long as he has data intended to revoke the will by destroying it, that will invalidate the will. So, for example, I had a client once who accidentally tor his will up. He took it to the photocopier, asked for two copies, he got three. So he decided to tear up the third copy. You guessed it. He ripped up the original instead. So basically celebrated all back together on that was absolutely fine because he had, Although he had destroyed it, he didn't have an intention of revoking his will at that time. Um, it could also be revoked by later will. So, generally speaking, the will will say I revoke all former wills, in which case that would revoke a former will. Then we've got a thing called dependent Relative revocation, which is nothing to do with the dependent relatives is to do with the test data, relying on a fact to revoke the will, which in effect is becomes ineffective. So let me just give you an example. I make a will or someone makes a 1966 then make a new will in 1968 which has a revocation clause in it. But then the when the will goes to probate, the 1968 will falls down because it wasn't executed correctly. So in that case, you say that he relied on the fact that the new will was valid to revoke the old one. But because the old one did not, um, take effect. But the revocation of the old one still takes effect. On the last one I've got on the list. There is a Rive, aka Terry Instrument, which is basically a document which just says I hereby revoke my will dated blah, blah, blah, signed and witnessed in the same way as a will would bay. So why would somebody want to sign a document like that? Well, it may be that they just I've had a client once who said I don't want this world to take effect. I want to cancel it, but I don't want, Um I haven't decided at this moment in time how I want my estate to be distributed, so I don't want to make a new will just yet. Now, if you do have a can't in that situation is a couple of things you need to bear in mind. One is you need to say to them if this will is revoked, your previous will will take effect. So you need to decide whether the previous will is mawr. Like what they actually want. Because if it isn't, they need to revoke that one, too. Or if they didn't have a previous will, you need to discuss the intestine, see rules with, um because the intestine see rules may not be appropriate for them either. So, I mean, I have had a client in that position once. He really couldn't make up his mind. The previous world he didn't want on the intestines, he wouldn't have inappropriate either. So I had to put quite a bit of pressure on him to actually change, come up with what he actually wanted to dio. Okay, so I hope that's given you a very brief overview off the law relating toe wills. Thank you for watching and hope to see you again for another installment. Thank you for watching

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Webinar

15:39

Hello. My name is Sue you a new on. In this short, Webinar will be looking at common will clauses on their effects. So we're going to be looking at the opening clause. The revocation clause. Impending marriage or civil partnership. Appointment of executors or trustees. Appointment of guardians for minors Charging closes funeral wishes on then the importance off the date on the will by the opening. So this is the first clause in the will on its states whose will it is. Quite often you include their address on, sometimes for completeness. You might also add their occupation or their date of birth. So those in pieces of information and usually added for clarity to make sure that the right test data is identified. For example, a father and son could have the same name. I've seen one where a new corner nephew had the same name. In the case of father and son, I've seen the words senior or junior being added to the will just to clarify which off the named persons it referred to on as I've said, It's a good, good opportunity to clarify the date of birth of the person just so that you know who's will. It is so in the opening clause is also a good place to list any aliases that the deceased may have had or any other names that he or she may have held assets in. So, for example, this is the last will and testament of Frederick John Smith, otherwise known as Frederick Smith, otherwise known as Fred Smith. So if, for example, the test status True name was Frederick John Smith, but he may have had bank accounts in the name of Frederick Smith, or he may have had them in the name of Fred Smith. So without the names off the bank accounts were in being cited on the will. It's it's likely that they may not get transferred to the grant of probate when issues which may cause problems for the executors when they come to close the accounts. Because, for example, if the probate just said Frederick John Smith, but the account was actually in the name of Frederick Smith, then the bank could say, we don't have an account in the name of Frederick John Smith, which would mean that the executives got to go back to the probate registry. Andi get the grant amended, which will obviously add delays and time to the administration of the estate. So, as I said, they're useful piece of information. Assets may only be released to the executives if the name of the deceased on the ground. Exactly that is the name that the ASA is registered in. Um, from my experience over the last 22 years, I think this is is not as, uh, it's not as much of a problem is it used to bay Aziz, a probate practitioner myself. Now, for many years I have sent things off to banks in the name of, say, Frederick Smith, and it's come back and Frederick John Smith. So, um, it's not a major problem these days, but it could cause a probably if they had other people with similar names. But the revocation clause. So if you've already looked at the webinar that we did on revocation, you'll be familiar with the concept of revocation on the fact that our will quite regularly includes a clause that says this will revokes or former wills, however sexual. One of the wills Act 18 37 states that the world will shall extend to a testament onto a codus ill on toe any other testamentary dispositions. So a testamentary disposition takes account of privileged world made by service men on active military service. However, in the absence of the revocation clause, all previous wills are automatically revoked insofar as the later will contains country directions, unless a statement to the contrary appears so in previous webinars are ex stressed the importance of making sure that you don't revoke all previous wills if there were, for example, previous wills in relation to foreign assets or specific assets, for example, business assets or literary assets. So clients may have made wills in relation to certain assets only on. We don't want to revoke all of those will so impending marriage or civil partnership. So, basically speaking, Section 18 of the Wills Act 18 37 which was amended by the Civil Partnership Act, states a will made before an impending marriage or civil partnership is automatically revoked by that marriage. You can put a clause in the will that states that the will will not be revoked if the marriage or civil partnership to a particular person takes place. The back, um Klaus can be unlimited or limited. So it could say that it needs to take place within a certain period of time in a certain place or in accordance with a certain religious faith. So but generally speaking, the ones that are usually put into Will's for clients, they are unlimited. So it would just say, um, if if my impending marriage to my partner Gregory takes place, my will shall not be revoked by that marriage, so are charging clause now. This is really quite important, especially for professional probate practitioners such as myself. So prior to the Trustee Act 2000, it was not possible for executor or trustee to recover more than out of pocket expenses. They're following the act. Per any personal body who acts in the course of a profession or business which consists off or includes the provision of services in the management or administration of trusts, may charge for his services on it usually comes from the estate. However, it's still common practice to put a clause in which clarifies that the professional is permitted to charge for their services. Andi, I put them in every single one of my wills because even if I may have initially appointed lay executives and trustees. Quite often they will come to me for advice on. Then they may say to me, Can you deal with this for us? Can Can we hand it over to you? Can you manage it for us? And in which case, if the charging clause is there within the will, they are under no illusion that they have to pay for the service. So a standard clause might read. Any of my trustees in a profession may charge in priority toe all gifts and free of inheritance tax for work which he or his firm does, including work not requiring professional help on for a company or firm in any way connected with my estate on the payment of fees to an executor or trustee is no longer considered a gift. So at one point, if you were the executor of a will and you witnessed will then Section 15 of the act would say of the wills act would say that because you were receiving a gift you were classed as a beneficiary on you four went your gift that was changed because it was seen that well, actually, this isn't a gift It's a payment for work done. So that was reversed. And now a professional can witness a will but still charge for their services. Well, it's a funeral wishes. So in a will, the funeral wishes are only wishes. There's no legal obligation for the executives to carry them out. So I always say to point, If you have real specific wishes and specific things that you want the happen in relation to your funeral, then the only way you can make sure that happens is Thio perhaps take out a prepaid funeral plan. Um, now on then your executives don't need to worry, because at the time that you die, the funeral director is contacted and they just later interaction on plan the funeral that you've paid for. So, um, the other thing about the funeral, which is in the will and I always point this out to clients, is that very often the will is read after your funeral. So it seems a bit sometimes pointless, having the funeral wishes within the will. So again, I would say to plants, because you risk but that situation arising whereby the your executives may not even know what your wishes were until after your funeral. Um, it's a good idea to keep your executives or your family informed as to what you would like toa happen the wishes that they could include in the will. These could include where it's to be held, whether they want burial or cremation directions as to the very burial or scattering of any ashes. What Bible readings and hymns. The test data would like directions As to flowers. I've got increasing number of clients now that want charitable donations to be made rather than flowers and directions for the funeral gathering and even for the wake afterwards. So best thing to do is inform the executive your wishes. If you want to leave your body for medical research or transplant purposes from April 2020 new legislation provides that everyone will automatically opt in to the transplant register unless they up now. So whereas we used to say to clients before, if you want to leave your body for transplant purposes, you need to carry a donor card. You need to be registered on the NHS donor organ register. Now you have to be registered on the donor register. If you want to opt out of so again, that's something quite important you should be discussing with your clients. Anybody parts would need to be removed as soon as possible after death. That's a good idea for the test data to either carry a donor card or register on the national donor register. So if they want to leave their body for medical research, then they would need to arrange that beforehand. So they would need to have an idea of which body they would like to leave the body to on contact that body prior and say, Would you like my body for research after I die? And if they say yes, they would then make the arrangements for how their body would be collected and delivered to them at the time? Um, it may be possible. But for example, if I died yesterday and my family decided to approach a organization on, so do you want my wife's body? They may. So no, really sorry. Can't have it should have been arranged beforehand, um, ashes and a lot of people want their actually scattered and certain places you may need to gain permission. For example, I've had clients that wanted to have their ashes scattered over ducks. Furred Air Museum I've had that wanted them scattered out of a plane on various football pitches, those sorts of wishes. You'd need to seek permission to do that. It also says there will not may not be read until after the funeral. So it's always a good idea to encourage the participative, inform the executors or their family of their wishes beforehand, or even prepare a priest a prepaid funeral plan. So the date of the will. So why is it important? I have a date on the will, so the date is usually at the end of the will, but it can be included at the beginning or at the end or both. So the one of the end should not be only should be later than the one at the beginning. So if I start writing out my will today and I could say this is the last will and testament of May through the new I knew dated the whatever date on gun I told my will out, and then two or three days later, I take take it to my witnesses and asked him toe to execute it for May so that date, but I execute it would be the date two or three days after I wrote the top. So if the date of the top was later than the one at the bottom, it may suggest that I went to my witnesses and got them toe. Witness it before I'd written the will out. That's why it's quite important that the the data the top has to be earlier than the date at the bottom. But every will needs toe have a date. But why is that necessary? Well, the date confirms that the will submitted to proof is the last will because there's none dated later than that date. It also confirms that the test data was 18 or over, and if he wasn't whether to treat the will as a privileged will, whether the test data may have married or entered into a civil partnership since the date of the will. So if the will was dated the 20th of June 2010. But we know that in August 2015 they got married that that will would be canceled unless there was the clause that clearly states that the will was made in contemplation off that marriage, whether the test data may have divorced or had a civil partnership dissolved since the day to the will. So the divorce or dissolution of civil partnership does no, um, invalidate the whole will. But what it does is it treats the former spouse or civil partner as having died on the date of either the decree absolute or the final dissolution order. So if you had a somebody come in and said, Oh, on the executor of this will, um, but this is my ex husband's will, then you're not the executor of that will anymore because you would have been treated as having died. You can put a contrary intention in the will to say that even if we do get divorced, I still want my four month spouse to be my executor on. I have actually done that for one client a couple of years ago on DTA confirm mental condition when the will was made. So if there was ever any doubt off the mental capacity off the best data, then once we got the date on the will, then medical evidence could be sought as to what the mental condition waas at that particular time. So I hope that gives you a brief overview of some of the clauses that you may find in a will. Thank you for watching on Hope to see You again for another installment. Thank you.

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Webinar

19:21

Hello. My name is Suit. Um Ooh. And in this short, webinar will be looking at the different types of gifts that you may find in a will on how they are made effective. So we're gonna look at pecuniary legacies devices, specific legacies, demonstrative legacies when a gift lapses charitable gifts, disposing off chattels onda legacies to executors. So let's have a look then at the different types. So in the will, you're likely to see some specific gifts and legacies given before the residue of the estate is distributed. So it could be a night, um, or it could be a sum of money. So all of these types of gifts have different names. So the first example I give there is £10,000 to my niece, Sandra. The specific amount of money is known as a pecuniary legacy. My house to my son Graham. Now this is called a devise, So devise is a gift off real estate. So, for example, ah, house or land Now, in this particular example, it says, I give my house to my son Graham. So bearing in mind that your will speaks from death, it would be considered to be the house that I owned at the day that I die. So if I don't have a house of the day I die, then the gift will lap. And if the test data wanted to only make provision for a certain house, he could put the address in there. So, for example, I give my house known as 123 High Street to my son Graham. But if on the day that I die 123 High Street does not form part of my estate because I've already sold it in my lifetime, then Graham will receive nothing. But a way to save that gift would be to say I give my property known as 123 High Street. But if that property does not form part of my state of the day, I die. I give the property that I owned and last used as my principal place of residence at the day of my And in that case, Graham would get the house that I own it the day that I die. So, as I said, But you could just say my house. Okay, then. The next one is what we refer to as a specific legacy on this is a a gift of a specific item. So in this example of given, there were leaving my car to my next door neighbor, Colin. So this has been worded to a not to cover a particular car, so it's very similar to the house. You could say. I give my Ferrari registration number 123 a, b c. D. Then calling would only receive that particular car. Or you could say, as we've got here, this would refer to the car owned at the date of death. Or you could say I give my Ferrari. But if that car doesn't exist, then I give the car that I last owned at the date of my death. Okay, then the last one I want to look at is called a demonstrative legacy. Um, this one is quite an interesting one. Eso, in example, I've given their I've said I want to give £500 specifically from my Halifax account, so we're saying that's where the gift has got to come from. But what happens if either the account doesn't exist the date I die or if there is less than £500 in it. Well, interestingly enough, in either of those two cases, the executors would make that £500 up from the residue. Okay, so But if if you compare that to a gift off the Halifax Bank account, I'm not gift collapses in the event that the Halifax account does not exist the date of my death so I could close my Halifax account. Halifax account doesn't exist. So if I leave the Halifax account to somebody in my will, the gift will lap. But if I leave a specific amount of money from a specific account, that gift will not lapse on that. The executives will actually make that gift up from the residue right subject to or free off inheritance tax or mortgage. Right? So one of the things you need to be careful off when you're drafting a will is this gift going to be free of tax or if there is any mortgage attached to a property, how is that mortgage going to be covered? So the first thing to look at then is if it's tax free. So if I say I give £100,000 John tax free, that means he gets £100,000 and he doesn't pay any tax on it. So if there is any tax attributed to that particular gift that will be paid from the residue off the estate, if it's subject attacks, then the beneficiary is responsible for covering any tax on the actual gift. So quite often I've just finished doing a will for a lady who wants to leave some quite large, specific gifts of money on dumb looking at the residue. And I'm thinking there may not actually be enough residue to cover all the attack. So I'm leaving the gifts that they would be subject attacks. Okay, so again, if there's a specific gift of a house and it has a mortgage on it, you need to be very careful and think, How is that mortgage going to be paid? So, for example, if I've got a house and I want to leave it to you in my will, if there's a mortgage on it, potentially all I'm leaving you is a debt, because that property cannot be transferred into your name until that mortgage is discharged. So is there going to be enough money in the residue? And if so, it does it state in the will? That's where the mortgage will be paid from. Or is the beneficiary. Are they expected to raise a mortgage themselves to pay off my mortgage and then continue with their own mortgage? That would be another option. Um, you may advise your client. Thio takes, um, life insurance, which would cover the mortgage. A client I had recently. She was she had three properties, all worth roughly the same three mortgages, one on each and her three daughters. And she wanted to leave one property to each daughter. So when I looked at it and I said to her, Well, actually, what you're going to be doing is just giving a debt to your daughter. 11 of them was a student. So I said, This is very unlikely that she would be able to raise a mortgage in her own right because she had no income. One of them probably could have raised the mortgage, but the other one, although she was working, she was on quite a low income on the mortgage is quite high. So I suggested to the point that she might like to speak to a knife A and get some advice on life insurance. But unfortunately, because she'd had Cem cancer a few years before, she was unable to get the life insurance, so it was still a bit of a quandary for her. So she did have other money and investments, and I said, Well, it looks like the chances are that those mortgages will have to be covered by your other money and investments. Otherwise the property will have to be sold to pay off the mortgage. So just a few things just for you to bear in mind there it's not just a simple is giving a house to somebody and again, as I said with the inheritance tax thing, you need to look a or what is actually going to be in the residue if this estate in a taxable estate is there going to be enough in the residue? If not, then the beneficiary will have Thio cover the tax themselves, right? So when does it gift lap? So the specific item may not exist, or it might have already been disposed off during the test data's lifetime. So we mentioned briefly earlier that if I say I leave my house situated at 123 High Street to my daughter, Susan. If I no longer own that house at the data dire, then the gift or laps. So to avoid it, as I mentioned previously, I could say I leave my house situate at one 23 High Street or if this property does not form part of my estate. I give any other property that I owned and used as my principal place of residence at the date of my death. Do my daughter, Susan. So if the test data moves, Susan will still receive her gift. However, it's a test. Data owns no property at the date of death. Then Susan's gift will lapse. Now, bearing in mind, a lot of our clients may sell their properties thio fund care fees when they're going to care. Or they may. I mean, I've got a few clients that actually moved in with their Children as they got older, so there isn't actually any house, but there's another clause that you could put in to say that something on lines off. But if my property is being sold, then you want a sum equivalent to the sale proceeds. You could put something like that into the actual will, so the gift doesn't completely laugh. Charitable gifts. So quite a few of our clients may wish to leave money or something in their will to a charity. It's really important that you get the right name of the charity on their registered charity number on their registered address that should be put into into the will. The Charity Commission website is a really good reference tool. If you look on there, you'll be able to see the current name off the charity as well, because regularly charities do change their names or they merge with other charities. So, um, it's a good idea. Always when you're drafting the will to just check the Charity Commission website, make sure you've got the name of the charity correct on. Make sure that you have got the right registered address on the registered number. I think the number is probably the most important thing out of all of those things. We know that parents will give us a free from inheritance tax provided they're registered Office is within the United Kingdom. If it's outside the United Kingdom, it will not pass free of inheritance tax, so It's a good, um, tax planning tool for a lot of clients. I had a client once, who she had in the state. There was a little bit over the nil rate band. So she left her new rate man to her sister on the residue to a cancer charity because she'd actually died from cancer. At the time she did her will, she was in remission. But she did die about two years later from the cancer. Um, also, you should make sure that you get you insert a clause into the will that tells the executors and trustees. But when they hand over the money to the charity, they ensure they get a receipt from the charity to confirm they've received it. So, for example, last week I wrote off Thio World Vision, sent him a check for £1000 asked him to acknowledge receipt of the check on, had a lovely letter back from them. Within a few days, banking may an explaining what they would put that money towards and how grateful they were to my deceased client for having left that £1000 to them so I can keep it on my file now. and I've got a record that they received that money. It's always worthwhile as well, putting a cloth into the will that says, um, that if the particular charity that your client has chosen is not in existence of the date of the distribution that executors can use their discretion on, pay the money to another charity that does similar things. It's worth discussing that with the client before you just put that into the will because I've had a few clients in the past, especially clients that haven't got any family members. And they may be leaving their whole estate split between three or four different charities. When I've said this to clients in the past, a few of them have actually said, Well, no, actually, if one of those charities didn't exist, I just want the other three toe have the money. I wouldn't want it to go anywhere else. It's worth just mentioning it to the client on making sure that you you've drafted the will in the way that they would want it to bay. Um, gifts made for a particular purpose to a charity may fail for impractical or for unlawful reasons, as as many gives to a charity, particular branch or office off the charity, so you might want to leave a gift to the I don't know the North London branch off mind. For example, um, it may not be possible to do that. All charitable gifts may have to be paid directly to the charity. You can put a wish in the will that says, I'm leaving this to mind, but my wish is that it's used within the north London area or something like that. I've said on the slide there. It's a good idea to check the Charity commission for advice when you're asked to do a certain thing for in a particular area off for a particular purpose on then. Since April 2012 is actually been possible to reduce the amount of inheritance tax that was, the estate pays E at least 10% off the test status free estate parties to a registered UK charity. So if, for example, I leave 10% of my estate to I don't know cancer research, the balance of my estate that is taxable instead of it being taxed at 40% will be taxed at 36% and quite Interestingly, when you do some calculations, even though my kids, for example, may be getting 10% less, because the amount of tax they're paying is less. Quite often it means they end up inheriting more money. So it is quite a good little attacks planning tool to use. And you might want to do a few calculations with your clients just to see if it does have the desired effect. Battles, right? So we're talking about the deceased personal bits and pieces now, so it could be jewelry. It could be, um, furniture. It could be the DVDs records, anything that any personal possessions that they would have had. So you can put it clauses in the world or saying I leave my watched. Afraid I leave my jewelry to Susan. I leave my car tow. Harry, you can put specific clauses in, but what happens if a client can't quite make up their mind? Who they would like Toa have certain things or I had a client once who was quite keen to dispose of most of her personal possessions, kept changing her mind about where she wanted things to go, so it might be a good idea to put a clause in the will that says that my personal possessions will be distributed in accordance with the list that I may write on may leave with my will. So it's not putting the test data under any obligation to write a list. But it gives him a little bit more flexibility and gives them a little bit more time to draft that list. They don't They're not under any pressure to get it done by the time they signed the will. So I often say to clients, You can write that letter if in six months, time or a year's time you've changed your mind, you've fallen out with somebody or you want to add to that list or take something off you can just through that list up, throw it in the bin on, write a new one and you won't have to keep coming back to your will on updating the will. So that's that's what we call. Um, it's just a memorandum of wishes, but if you actually wanted toe have a A list that is a testamentary document on is not as discretionary, so I could say all my personal possessions are being distributed in accordance with the list that I have made on have left with my executors. So that list will be a testamentary document, and it will form part of the will. So in that case, if you want to incorporate a list into your will, it has to be in existence at the day that the will was drafted. So it has to be. It has to have been signed on the date that the will was signed or prior to the date that the will was signed on once you specifically referred to a list by date in the will. As I've said, it forms, part of the document on will be proved along with the will of the probate registry Will ask to see that that list, um, so a fed there, if there's any mention of a list of probate registry will ask to see it. So therefore, the test that it should be advised to change the will of the list ceases to exist because it could be their screw the list. Start throwing it away on that dimension off. It is still in the will, so the program registry will off the applicant. Look for that list on that could be called a time consuming. Um, if, like me, you know most professionals when they draft wills for people, they write to them every 2 to 3 years just to review the circumstances. Um, that that might be something that you keep annoy on every 2 to 3 years. Okay, so gifts to executors and trustees there, quite often, you appoint somebody as an executor in a will. You might want to leave that person five £1000 for example. But what the test data needs to decide on what you need to do in the will is to document quite clearly whether this gift is conditional upon somebody acting as an executor or trustee or whether it's just in gratitude for so if it's in gratitude for and they don't actually act as an executor or trustee, the chances are they will get that gift. But if it's I give £5000 to Susan for acting as my trusty, and she doesn't act as a trustee for whatever reason, then she will not yet the gift. So I put a sample there and he says, I give free of tax the sum of £12,000 to Fred Smith. This legacy is or is not conditional upon him acting as my executor on door trustee. So it needs to be very clear, because if you just say I give £12,000 to Fred, he will absolutely be entitled to that £12,000. Okay, so I hope that's given you a brief overview of the types of legacies and when they may lapse. Thank you for watching Andi. I look forward to seeing you again for the next installment. Thank you.

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Webinar

13:38

Hello. My name is Sue you A new on initial Webinar will be looking at the attestation process on data station clauses. So we'll be looking at the attestation process itself. Who could be a witness to a will? The attestation clause. So we look at the purpose off it. What constitutes a good claws on examples off common attestation clauses. Okay, so what is the answer? Station off the will. So the process of attestation or execution which is another word that you may have heard means the legal signing and witnessing off the will. So in order for a will to be valid, it must be signed by the test data or by someone else on his behalf in his presence on at his direction, in the presence of two witnesses who must then sign in the presence off the test data, but not necessarily in the presence off each other. So there are certain people that could be witnesses toe wills. They have to be independent to the test data. On in a moment we will explore what we mean by independent, but who can be a witness then 7 15 of the wills act 18 37 sets out the people or classes of people who can be a witness to a will. So, generally speaking, it's probably easier to say who can't be a witness to a will, because anybody can be a witness to a will provided they are not a beneficiary named in the will a spouse or civil partner off a beneficiary named in the will, someone who's lost mental capacity or someone who is blind. So e think it's quite obviously, if someone's blind, they're not going to be able to witness the test. Data signing will will if the spouse, if the witness is not a spouse off a beneficiary at the time that the will was signed but later becomes the spouse or civil partner off the beneficiary. That does not invalidate the execution of the will. So it has to be somebody who is not a beneficiary or somebody who is not married or in a civil partnership with a beneficiary at the date of the will signed. But they're becoming married or entering into civil partnership afterwards has no effect on the will. So what is the anticipation clause? This is the clause at the end of the will that confirms that the will Waas duly executed. So a will is Dean to speak for itself. Therefore, the existence of an attestation clause if a song is it's a correct clause, confirms that the will was properly executed on it will be accepted on face value unless there's anything to suggest that something wasn't quite right. Um, there is absolutely no legal requirement for there to be an attestation clause within a will. So why do we put them on there? You might be asking yourself. Well, it's purely to confirm to the probate registry that the will was executed in accordance with the proper rules and regulations, because if they will passes to the probate registry that has not bean or has not got the matter station claws on it, then the program registry have no idea whether or not the will was executed correctly on. They will ask witnesses to come in and give evidence as toe. How the execution took place on that can cause problems. If you looked at the the Webinar regarding on alterations, it could be that the witnesses are untraceable or they may be dead, so that will cause the problem in getting the record the evidence as to what happened to execution. So if then you may have a NASA station clause, but it may be what we call a four. He thought so. In that case, the program office again will want evidence that the execution took place correctly. So what do we mean by a fourty clause? Well, when we look at what the attestation clause, what information it should contain, it purely means that some of the information is missing what constitutes a good clause. So the answer station clause must state three things. So it states that the will was signed by the test state, um, or by someone else in his presence at his request and at his direct. The next thing it needs to confirm is that it was signed in the presence of two witnesses on then. The third thing is that the two witnesses then signed in the presence off the test data. The clause is a statement by the witnesses and not by anybody else. So it's not the statement by the test data, and it is not a statement by a third party. So the bottom of the slide there. I've just put a little footnote because a few years back in 2003 the probate registry started getting a lot of enquiries from solicitors and professional will writers who had used an attestation clause, which came from the James Kessler Book, Ramping Trust and World Trust. Now this clause was a statement by a third party. On was not a statement by the witnesses. So it confirmed that the will was signed in the presence of Fred Blog's, who then signed in the presence off to Independent With. There was a third party statement. So when the probate registry was rejecting these clauses, it soon became evident from the comments that the registries were getting back, that this was a potential problem. So at the time, the senior district judge, the Angel Center, a practice direction along the program registries that said if a professionally drafted will had one of thes 40 clauses in it was to be accepted by the probate registration. So a Sfar, as I know that clause is still the same in the Kessler book. It hasn't been changed, so but rest assured, if you do use that clause, it will be accepted by the probate registry. Right? So some sample clauses then. So we know the three pieces of information that the clause needs to contain. So it's nice to have a really simple clause. So the most simple one I can think off is signed by the test data in our presence on then by us in his. So it's pretty straightforward and easy for the probate registry to read that and say yes, that's a good clause. Execution took place, Um, as you should have done other, more complex sources. This is an example of one that I've seen on more than one occasion signed by the above test data as him for his last will and testament. He having first read and approved the contents of the same in the presence of both of us, the attesting witnesses being present together at the same time who, in the presence of the tech test data and in the presence of each other, have here undersubscribed our names as witnesses. So if you read that carefully, I think you'll agree that all of the three elements are included within that clause. Um signed by the set has data thread blocks in our presence on by us in his right. So again, if the clause leaves a space between the word test data on the word in the test data may very well be invited to sign their name within that ball. Remember, we said earlier statement by the witnesses. And as such, there is no place for the test data to sign his name within that laws. Um, if the name is written, just he might just written Fred Blog's and he signed it next to the clause, which is the normal place. That's absolutely fine. But what the probate registry will do is if they see a clause like that where the test data has find their name in that gap, and he hasn't signed it in any other place on the will. The probate registry would just get the evidence from the witnesses to confirm that the test data signed there with the intention of giving effect to the will on again some of the W. H. Smith's clauses wills that you could buy. Um, they actually have those sorts, of course, is whether it's the gap, and it invites the test voter to sign there. So again, there was a practice direction a few years back. Now, where the district judge said, if it was one of these, um, homemade wills on one of these pre prepared will 10 plates, they would accept that as well, right? Her different clauses for different situations. So sometimes it may be necessary to have a more cause on Quite often, the clause needs toe have an explanation. Asato. Why something made on the face of it look a bit strange or a bit unethical. So, for example, if the test data signatory shaky or unstable in any way, this may bring the probate registry to draw the conclusion that the person was underdressed or it could be that they can't read on day may not understood and approved the content of the world before they sign, um, it might also mean that the test data is physically unable to sign due to an illness. It could also suggest that they had on their head or someone a form of duress or undue influence on the person Well, so as long as the attestation clause explains why the signature was shaky or unstable, then the probate registry will accept that on face value. But if there is no explanation, then they will call the witnesses to come in and give evidence as toe. What happened when the will was executed? So sample clauses then. So the signature off the test status shaky due to her having arthritis in her hand. So I signed by the said Take this data in our presence after the will was read over to her when she acknowledged to approve the content of the will in in our presence on, then signed by us in her presence. So that would then held the program registry that her signature was shaky, but not because she had a gun at her head. Um, she had approved the content of the will, so that's what we call a approval of the content of the will. Right? So that's her stage. You couldn't sign the will herself because she had a physical impairment. Then it could, A clause could say, signed by Frida Blog's in the name off, blah, blah, blah. So there should have been a gap there a name off, say, Otto Jean blog's and at at her direction, off the said test data in her presence and in the presence of us on. We then signed in her presence. If somebody else is signing the will, um, for somebody else, they can either sign it in their name on behalf off or they consign it in the name of the test maker. As the test data was being blocks, you could say, signed by Frida, blocked in the name off, um, Jane Blog's or on Behalf Off Jane. Blog's right. So the test data is blind and only signed with the mark so signed by the set test data by making her mark she being incapable through infirmity of writing her name after the contents of the will had been fully read over to her and she appeared to understand and approve the same in our presence on by us in hers. Now be honest. I've seen a lot of visually impaired his staters, whose signatures are actually very good, and some of them are so actually better than some people who are not visually impaired. Andi, I think the some Brian people carried a card with them. It looks a bit like a credit card, and it's got a cut out area on it where if you put that on the page. They can feel that and they can actually sign in that gap. I've seen that on the few occasions. In fact, I used to have one that used to carry with me just in case I had a visually impaired clients that the clause must contain details of how the will was executed on must account for the three elements listed above. If any of thes elements is missing, the registry will call for the witnesses to confirm that the will was correctly execute. So I hope that's given you a brief overview. Thank you for watching on. I look forward to seeing you again in a different installment. Thank you for watching.

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Webinar

12:49

Hello. My name is Sue you a new. And in this short, webinar will be looking at alterations, amendments and additions to the will both prior to execution on post execution. So the first thing we look at is the prior to execution. Well, then look, um alterations post execution on. Then we'll look at plight in condition on in particular, satisfying the probate registry as to the validity off the alterations. So if a will has to be altered in any way before execution, that alteration has to be validated by the test data on the two witnesses on that is set down by section 21 off the wills at 18. 37. So if there are any alterations on the will that have bean unverifiable by the test data and the two witnesses, there is a presumption that the alteration was made after execution. But if the applicant to the grant of probate can satisfy the probate registry that with suitable evidence that the alteration waas made before then they can validate that particular alteration. So how can alterations be validated? So in one of my previous lives, I was a manager at the London Probate Registry so quite often, you know, get will's coming through my hands that had been altered by the test data on it could be this. Put lines through. Things struck out. Words changed. Addresses changed legacies on some of these alterations were done in different colored inks and different colored pens, so the probate registry will accept any of those things provided. It's evident that the test data and the two witnesses validated those alterations at the time that the will was executed. Um, so that that can be verified by the alteration being initialed by the test data on the two witnesses they will not accept. Typical completely erases or over type in, because that cannot be verified by anybody. If it's just a crossing out on somebody's written something above it that can be verified, they must be specific, brief, specifically referred to in the attestation clause. So, for example, if someone is, um, Tipp ex over something, the attestation clause has to address that. And so what change was actually made by the tip picks. It can't just be initialed by the test data and the witnesses eso we know we can do it by referencing the attestation clause or if they're of no material importance than the probate registry, will accept it without any further evidence. So, for example, if I'm right a will and I say Higher point John Smith of 123 High Street Andi later on, he moves. And then I think, Oh, I'd better just changed my will on I just go to my will and cross it through and write his new address above it. That is off no material important, so it doesn't affect the person who is going to be my executor, and it doesn't affect any legacy or gift in the will. So if the alteration is not verified on, no evidence can be adduced to rebut the presumption. The probate registry will restore the will back to its original form. So what they do is they do a thing called a fire copy on. They re type the will on restoring the text as it waas before the alteration was made. So what evidence does the probate office require so evidence from the witnesses to confirm the condition of the will at the time of execution? So were the amendments or alterations present at that time. So if the witness evidence is conclusive, then if alterations were there, the will is proved as it is. If the alterations were not there, they will be removed and the will restored back to its original form by it. The fired copy that I I refer to previously. If witness evidence is inconclusive, the will has restored back to its original form. So what is The witnesses are unavailable. So quite regularly in the program office, we would ask the witnesses to come in and give us evidence regarding the execution of the will. Um, witnesses could be dead, or sometimes witnesses may just be untraceable. So we know that when we get a will executed, we ask the witnesses to put their address on the form on the will. But by the time the will actually comes to be improved, the witness may have moved house. As I said, they have died. So then the probate registry has to start looking for other people to get the evidence from. But the first thing I would ask is, was anyone else present when the test data signed the will apart from the witnesses, So it could be you as the person that drafted the will may have bean present at that time, in which case you could give evidence. Um, another way is Thio produce a copy of the will as it wasa at the time of execution. So a sumas, all my wills, a draft Is there also a story executed? They're all scanned onto my system on then If anybody made any alterations to those wills later date, I would have a copy of it as it waas prior to the alterations being made. So if the program registry approached me for evidence, I'll be able to produce a copy of the will as it was at the time of execution on. Then if those alterations were there, they would know that they could prove the wheels it waas. But if the alterations were not there, they would know to restore that will back to its original form by the But I had to copy the alterations after execution, So any changes made to the will after execution again have to be verified by either a coda still or re execution off the will. So clients should always be warned not to make any changes to their will without seeking advice from either yourself or someone else that's legally qualified because they could invalidate their will by writing all over it and making errors. Um, I always send when I send. Um, if I'm not storing the well, I'm sending the original will back to clients. I always say to them, Do not pin anything to your will. Do not make any adjustments or any alterations and do not write on it. If you want to make any changes to it, please get in touch with May on. I'll talk you through the legal way of doing that. So some examples here that I've seen the program registry, the test status signature was cut out of the will, thus invalidating the whole document. Hand written alterations were made to the will, which were removed by the probate registry because they were not authenticated on the test state across through a legacy and wrote canceled next to it as there was no authentication of the deletion, the registry restored the will back to its original form, and some of the other alterations I've seen and this is quite common, is where somebody's left a legacy to somebody and that person dies. So the test data then puts the line through it and says died and then puts the date that they died, and it's then evident that that was done after execution. So again, the the will would be restored back to its original form, right? So a plight in condition. So the program rescue looks very carefully. Every will that comes through their offices, and if there is any evidence that any document was attached to it or any evidence that it's been changed, then they want some proof that that will was not. It wasn't attempt to revoke it on have also seen cases where there's been missing pages. Eso We have to look at all these cases on their own merits. So some classic examples are evidence of pin or staple hold, which might suggest a coda still or list was attached but has been removed. So I always tell my clients not the pin or staple anything to their will, A Z we've said there. If there's any evidence of hold on that might suggest to the probate registry that something was attached now, on occasions here in the office, when we've stapled a will together after it's all been signed and scanned. Um, I had a couple of occasions where we've staple the pages back front, so we've turned the pages round, stapled it again, but that's left some holes on the other side. So what I've been done is just put a note with the will to whom it may concern and just explaining how that actually happened. Torre nor burnt edges of the will may suggest an attempt revocation. So if you've already looked at the weather now that we did on revocation, we talked about how simple it would be to revoke your will by destruction or burning. So I gave that example off. If you want to destroy your will for to revoke it as long as you did it with an intention to revoke the will in the physical presence of a witness on you, made it clear that you were revoking your will. Something as simple as that would be a good revocation. On the same would be with a burn marks. If somebody put a burn mark on their will, and it was intended to revoke the will, that would be effective revocation. So the probate registry would be looking at the condition of the will and see if it's suggested that anything was attached to it or there was any evidence off attempt a revocation. The other thing they look at is, does the text flow freely and makes sense? Because if it doesn't, that might suggest that there are pages missing. The wheels that we generally draft have paragraph numbers. So it would be quite difficult for anybody to remove a page without it being pretty evident that that page has bean removed. Um, so the program office would look for that sort of free flowing text to make sure that the the will hasn't been tampered with in any way that the document is all in the same color font and size both it isn't. It could suggest there are missing on additional pages. So, for example, if someone has crossed something out and written something in red, or if the farm was different or the paper was different, then that might suggest that somebody has been tampering with it. Um, that the will is well bound. So if there are loose pages that could suggest the document was taken apart in orderto add or remove pages. So there's the case of Louis versus Lewis in 1988 on the estate of Little in 19 right, and these were concerned with what amounts to sufficient binding of wills. So to make it more difficult, add remove pages. You may ask the test data to sign the bottom of every page. Some people ask the witnesses to sign at the bottom of every page a swell as in the vicinity off theater station cloth. That might not be necessary if the text those as far down to the bottom as possible, that would stop anybody adding anything in. I've also seen wills where it says this is the last paragraph of my will and the the only writing underneath this paragraph is theater station clause. So that would stop anybody writing anything in between That last paragraph on the actor station clause. Okay, so I hope that this thought whether I was giving you a very brief overview off alterations, additions and amendments to the will. Thank you for watching Andi. I hope to see you were going in the future at another installment. Thank you. Thank you.

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Webinar

15:34

Hello. My name is Sue you a new and in this short, Webinar will be looking at revocation off wills. So the main things will be looking at our why somebody would want to cancel a will on then effective ways off revoking or canceling that will to make sure that it's a legal revocation. So why revoke a will? What? Generally speaking, people would want to revoke their will because the previous will that I made does not meet their requirements any longer on they would not want that will to stand. So there are various ways that they can revoke the will, which we will talk about in more detail. But it just needs to be pointed out that somebody can only revoke there will, if they have the mental capacity to understand the nature and effect off the act they are carrying out. So you remember in the banks and Goodfellow test. But test said that the test data has to understand the nature and effect off the act. And in that case, it was the act off making a will. In this case, it would be the act off canceling or revoking the will for somebody who has lost mental capacity is unable to revoke their will. Okay, so will can be revoked completely so you can revoke the whole will. Or you could revoke the will partially and, as we said, that could be done in a number of white right? So you may be aware that if somebody makes a will on, then later enters into a marriage or a civil partnership that will is automatically canceled by the marriage or civil partnership unless the will has a statement included within it. That makes it clear that if the marriage or civil partnership to a particular person takes place in the future, that will what spend. So that clause could be just a general clause. Or it could impose limitations on the marriage taking place within a certain period of time, in a specific way or in a specific place. So, for example, they could say, if I get married in accordance with the Catholic faith, but if then somebody doesn't get involved married in accordance with the Catholic faith, then that will would be canceled by that particular marriage. So if a test data makes a will and his marriage or civil partnership is later dissolved or annulled by a decree of the court. Then, if the court declares that the marriage or civil partnership is void, the will remains valid. That any mention off the spouse or civil partner is treated as if the spouse or civil partner died on the day that either the decree absolute or the final dissolution of civil partnership order was actually made. Eso so. Basically the will still stands, but it would actually cancel if you like any mention off the spouse or civil partner. So, for example, if the will said, I make my husband the sole executor and leave him my whole estate. But if he doesn't survive me by 30 days, it goes to my Children, then the decree absolute when that issues he would have been treated as having died on the date off the decree, absolute by later will. So most wills that we draft would contain a clause clearly stating that all previous wills are canceled by this will. Even if your will doesn't include such a statement, the fact that it's a later will will automatically revoke or former wills. It may be that you don't want to revoke all former wills because you might want to keep any wills in relation to foreign assets, for example, or in relation to literary estate or in relation to business assets. So the revocation clause has to be worded very carefully to ensure that only the parts of the estate that the test data wants revoked will actually be revoked. So if a later will without your education course disposes of part of the estate, any former wills may need to be considered so often. Wills must be taken together on the decision arrived as to whether both should be proved in order to give effect to the test. Taters wishes. So a statement in a will but says this is the last will and testament off me is not sufficient on its own to revoke earlier wills, because if I say in my will, this is my last will on. I don't fully dispose of all of my assets in this will. Then, although that may revoke the disposition of those particular assets under a previous will, it will not revoke the disposition of any other assets that were mentioned in the previous will. And it's possible when that both those wills would stand together one to deal with one part of the estate on the other one. The early one would do with the other part assets, which are not mentioned in the later will by destruction. So a test data can destroy their will as long as they have the intention off revoking the will by the destruction. So, for example, if somebody sets like there will cares it up and it's purely accidental that will is not revoked by the action. I've seen a will where somebody celebrated all back together again because what they've done was gone to the photocopier, photocopied the will. Thought they'd made too many copies of Will tor up what they believed was the photocopy on, then realize it actually tor up the original. So in that case, the test data didn't have any intention to revoke that will, so that will would still stand. But it has to be destroyed by the test data or a person at his descriptive direction and in his present, so in his physical presence, So you gotta be there, and they got to see him or the burn, tear or otherwise destroy the will in order to effect unintended revocation. So, um, one of the things when I won in my previous life I was a manager at the London Probate Registry on responsible for signing grants of probate. If any will came into the office, that had a slight tear. So, for example, that would be a tear in a will. Um, if that was the tear, then I may need to get witness evidence on that just toe. Decide whether or not that waas a deliberate attempt attempt to revoke that will, because that's all it needs. I could say I revoke my will as long as I had the intention to revoke here, and I did it in someone's presence on. They knew that I was revoking my will. That would constitute a legal, ineffective revocation. The same with burning if we saw any wills in the probate registry with various burns on them, I saw a few with burns at the edges. It was usually where somebody had been smoking and the rash had fallen onto it. But Noel, the time you have to get the evidence just to ascertain whether or not it was an attempt at destruction. So a revocation must be complete and not interrupted. So, as I said before, will destroy the error is not revoked as the act of revocation must be an intentional act of revocation. But if the test data was known to have made a will on it was last in his custody but cannot be found at his death. He is presumed to have revoked the will during the lifetime. However, if we have, uh, evidence to rebut that presumption, then the executors can prove a copy produced a copy of the will to the probate registry for approving, Um, as long as the if the will was seen since the date of death with the probate registry will prove that will because it's if it's been seen since the date of death. There isn't any chance that the test data could have revoked it, but if it hasn't been seen since the date of death, But the executives may have evidence to rebut the presumption that the test data revoked it during their lifetime. Then they have to swear an affidavit, effects or statement of truth to the probate registry, just confirming the evidence they have that will be considered by the district judge or registrar. So one of the things I saw when I worked in the program registry was an executor. Swore, um affidavit fax saying that test data had made him the executor of the will. He knows that the test data had made various wheels over the years, and every time he canceled a will, I made a new one. He told him about it, and he believed that if he had canceled the will, he would have told him about it. So the test data had sent the executor of copy, and it was the copy that the executor was successful improving by a provocateur e instrument. So a revoke a Torrey instrument is a written declaration which in states that there was an impure on clear intention to revoke or former will. So it is. It's executed in exactly the same way as a will on such revelatory instrument may also be made informally by a person exercising a privilege under set Well, 1937. So if you've seen the webinar regarding introduction toe wills, we talked about privileged wills. Eso If you haven't seen that one, it might be worth you just having given that one quick listen to, um, so provocative instrument. Then it's a document which is Britain in a similar way. Toe will. But it says I hereby revoke either a certain will allow former wills made by May unauthenticated letter written by a soldier in 1918 containing the passage as regards my will if you haven't already done so I want you to burn it. But I have already canceled. It was held to be an effective reputation. So no Taliban A. The same conditions apply when revoking or will under privilege as we're making such a will. So revelatory instrument is useful when the test data wants to revoke an earlier will, but hasn't yet made up his mind as to what he wants his new will to say. So he doesn't want to make a new one of the poems. Um, he may want to just revoke it. It will revive any previous will. And if you didn't have a previous will and the intestine see, rules will apply. So if you have a client that asks you toe draft arrive aka Terry Instrument because they want to cancel their last will, you do need to discuss with them the effect of the will before that or any intestine. See rules, because it may be that those rules won't apply or be effective for him, either, Right by coda Sill. So I'm sure we're aware of what a coda Sicily's. So this is a separate document, which again is executed in the same way as a will, referring to an earlier will where it makes an amendment or a change to that earlier will whilst confirming the rest of the will. So, for example, if in the Willet said, I give £5000 my grandchildren, But now the state wants to give £10,000 to each grandchild they can make. The code is still saying I am, and paragraph blah blah, blah off my will dated blah, blah, blah so that it now reads. I give £10,000 each of my grandchildren on. Then he would go on to say I confirm the content of the rest of my will, so any wills made between the date of the earlier will on the codicil would be revoked unless the coda seal specifically only revokes a will off a particular date, a will which is partly revoked and then holy revoked will only be revived by a codicil in so far as it was prior to total revocation, the i E. And it's partially revoked. State unless the contrary intention is shown once a little are part is revoked, it remains revoked unless they specifically revived. So again, revocation. The intention to revoke is important on is largely decided by evidence, so the intention to revoke must accompany the act. A person of unsound mind, therefore, cannot revoke a will if there's any doubt about the revival of a will or documents would be proved so that the Court of Chancery, acting as a court of construction, has all the documents before it and can decide if there waas the intention to revive. So, as I said, do need to be careful because once you cancel a will of a particular date, you could eventually be reviving previous wills and you do need to check with it test data that that is their intention as well. But if the revocation of a will is conditional on some fact or event on the condition is not met, then the attempted revocation fails right by dependent relative revocation. So it sounds like it's something to do with your dependent relatives. But it's got absolutely nothing to do with your dependent relatives. So when revocation is is conditional, it is termed a dependent relative revocation, So I e. The revocation is grounded on an assumption of fact, which is false on. Therefore, the revocation is not effective. For example, will attest. Data makes a well in 1966 in 1968 he makes a further will containing a revocation clause. Believe in the 1966 will is revoked by the will of 1968. He destroys the 1966 will. After this the later will is found not to be well executed and is therefore invalid. The revocation by destruction was conditional upon the test status belief that the later will was valid so that being a mist ake since the revocation was conditional upon the belief that the later will was valid, the revocation fouls on the 1966 will should be proved if it's still exist. So, as I said earlier, you could reconstruct it, put it back together or create a copy. Okay, so I hope that's very short Webinars, given you a brief overview off revocation of wills. Thank you for watching and hope to see you again on another installment. Thank you for watching.

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Webinar

18:16

Hello. My name is Sue you a new an initial webinar. I'm going to introduce you to the rules off in testis e. The content that we're gonna be looking at is first of all, what is in testis e what assets Comm pass under in testis e who is entitled to a new state under in testis e What is partial in testis e on who is entitled to assets under a partial in testis e Right. So first of all them what is in testis e So if a valid will is not made when someone dies, then the test data dies. Holy intestate. So his whole estates or his money, his property and any other belongs he may have had will pass to his next blood relative or next of kin under the rules off in testis e. So, um, there is a pecking order which is set down by Section 46 of the administration of the States at 1925 on this details thes succession to the deceased riel impersonal estate where he or she died without a valid will, all of the disease property subject to a statutory trust on the section 33 of the administration of the states at 1925 as amended by the Trust of Land and appointment of Trustees Act 1996. So a statutory trust is a trust that one is imposed by law on is not off the test staters or the intestate choosing or making so quite rightly, when we are in discussion with clients and they say, Do I need to make a will? I say, Well, you can make a will if you would like your assets to path where you would like them to go Otherwise the government will make a nice will for you under the intestine. See rules. Okay, so what assets can pass under in testis e um, most of pass underneath test to see Theo the main ones, really, that can't pass or any assets that were held in trust. So if the deceased waas entitled to benefit from any assets held in trust, they stay in the trust, do not pass into the intestate estate. If they had a property which they owned jointly as tenants in common, their share off the tenancy in common will pass under the intestine, see rules if they owned that property as joint tenants. Then, as I'm sure we know, the share of the deceased share of the property will pass sideways on will pass automatically to the joint owner. There are some other assets as well nominated assets. So, for example, if they're nominated, somebody toe have any death in service benefits they may have, or any life insurance policies than these may pass directly to the people that they have nominated, as opposed to stay in their estate, on passing down via the rules off in testis e business assets. It depends how the business is set up. But if, for example, you are a sole trader, if you're a sole trader than all of your assets passed into your estate when you die, either path through your will. But as you if you haven't got a will, it will. They will pass under the intestine. See rules. Um, if you have a partnership, if you're in partnership and there's a proper partnership agreement, then the partnership agreement will say where the deceased share of the partnership goes. If there isn't a partnership agreement, then the partnership is automatically revoked. Dissolved on the death of one of the partners on then that deceased partner's share is treated like a sole traders business and will fall into their estate. If it's a limited company, you need to look at the articles of association to see where those shares would pass so it could say that they pass into the estate, in which case they would pass under the intestines. He rules. Otherwise, it may say that they pass back to the other directors who have first refusal on them. Um, immovable foreign assets. So, for example, if you've got a house in Spain that will pass under the laws of Spain on not under the laws off the UK in testis e So, generally speaking, any immovable property passes in accordance with the law of the place where it is. If it's moveable. Foreign property, yes, that will pass into the intestate estate on will pass under the rules of intestine. See, then you've got this wonderful thing called a denial geo mortis causa, which is basically a deathbed gift. So if, for example, on my deathbed, I give my keys to my house to Fred and I say to him, I want you to have my house providing I die. Fred has already got the gift. And I've made the gift in my lifetime. So that will not fall into my state on past under the water of in testis e Um, just a word about that BMC gift. If I don't die, then the gift is revoked by the fact that I'm not bed because it it's conditional on me dying. ERM and it has to be made at a time when I know I'm going to die on. I do actually die, right? So spouse for civil partners. So if we look at the intestine, see rules so you can see them in 17 46 of the administration of the States at it will say that the first person entitled to benefit from the intestate estate is the spouse or civil partner. So with effect from the sixth of February 2020 the statutory legacy, which is the gift by law given to the spouse or civil partner, is made up as follows. So the spouse or civil partner will inherit the 1st £270,000 of assets held in the sole name off the deceased. So that will include, um assets held as tenants in common but not assets held as joint tenants. So we've said that automatically assets that pass that our joint tenants will pass automatically to the Survivor. But I get the 1st 270,000 of assets, plus the personal chattels as defined by the administration of a state's act and amended by the inheritance and trustees Powers Act 2014 So away they'll get is the 1st 270,000, so the rest of it will be split into two. The surviving spouse or partner gets 50% on the other, 50% goes to the Children off the decease. So if the deceased didn't have any Children, then thesis vie ving spouse or civil partner will inherit the whole estate. So let's just say then that there is no spouse or civil partner on that. Could be because the intestate was a bachelor or spinster. Never married. There could be a single person because they were divorced. Um, it could be they will weed out. Um, it could be that they were a survive. They were surviving civil partner or the civil partnership had bean devolved. So in those circumstances, as long as we can clear off the surviving spouse. So what clearing off means? It means that we have taken into account the fact that the surviving spouse is has priority over the Children. But we've been able to disregard the spouse because there is not one in existence at the tide. So the next people are the Children off the deceased on the issue of any deceased child who died before the deceased. So if there isn't any surviving spouse or civil partner, then it has to be the Children off the deceased. Now the Children include a legally adopted Children, biological Children, but do no include step Children. But if you have clients who are in second marriages, and if each got step Children on, they leave money. If I don't have a will, it won't go to there. Step Children. The estate will only pass to their own Children, so making a will is the only way to make sure that their step Children would also benefit. So the estate is initially then split between the number of Children the deceased had. So, for example, if I had four Children, then my estate would be split into four equal portions. But if one of my Children had passed away before me, they had had Children then that share that quarter would then passed down to be split between the two grandchildren. And that's called what we call a stir pittle interest you may have seen in a will where we say that somebody will inherit pursed earpiece, which is a Latin term basically meeting meaning according to the stock. So this is your stock, and you go down that line. Eso biological Children who have been adopted out of the intestate estate also will not inherit. So if I had a baby 30 years ago on, I gave that baby up for adoption. That baby now has or would be a baby now, but that person would not have any right to my estate. But they would be, um, included in the estate of the people that adopted them. And likewise, if I adopted a child that child would inherit from me and not from the people who were their biological parents. Well, if any of those beneficiaries are under 18 years old, then their their share is held on a statutory trust for them until the age off 18. So in that circumstance, she's usually have to have two applicants for the grant of letters of administration on most to people would hold that money upon trust for the beneficiary until they reach the age of 18. So already you can see that that's a bit of a disadvantage, because if someone had made a will, they could have said that they wanted the child to inherit later than 18. So it's a good reason to make a will. Okay, so let's assume, then that the deceased had no Children, no grandchildren, so there's no issue at all. So you clear off the Children and the issue. The next persons entitled would be the parents of the deceased. So if there are two parents alive, they share equally 50% each. If one parent is still alive, only they get to avoid. In Parent inherits the whole state. So it says there with effect from the first of October 2014 a man with parental responsibility but unmarried to the gold Mother is entitled to inherit from his deceased child's estate. So this provision is in the inheritance and trustees powers at 2014 on Repeals Section 18 of the Family Law Reform Act 1987 which prohibited on unmarried father or any other member of his family from entitlement to the child estate. That's just worth bearing in mind, right? So that if if their parents, the next people, would be brothers and sisters off the whole blood or their issue. So when we talk about brothers and sisters of the whole blood, this means brothers and sisters of the deceased who shared both the same father on the same mother as the deceased. Um, so if any of those brothers or sisters pre deceased, the deceased and they had Children, then again that share would go down their Children. So let's imagine, I'd I've got two brothers on. One of them has died before May. Then the estate is still split 50 50. The surviving sibling would get 50% on the Children off. The pre deceased sibling would inherit the other 50% and again, if any of those beneficiaries under 18 years of age, then their share will be held on them on a statutory trust until they attain the age of 18 Right? So, assuming there are no brothers and sisters off the whole blood and no issue of the brothers and sisters of the whole blood, the next people entitled our Brothers and Sisters of the half Blood. So these are brothers and sisters off the deceased who share one parent with the deceased on. This works in exactly the same way as the brothers and sisters of the whole blood, so each half blood sibling would share equally. But if any of those predeceased the intestate, then their Children, if there were any, would inherit that share. And of course, it's just worth mentioning. I don't think I mentioned it before, but if that pre deceased person didn't have any Children, then that share stays in the pot to be split between the surviving siblings. Right? So there are no brothers and sisters of the half blood. The next people entitled would be grandparent's. So there would be four, potentially in all, the maximum of four grand parents on they would share in equal shares, right? If there's no grand parents, then the next people entitled are the aunts and uncles of the whole blood or their issue. So, again, this is aunts and uncles off the deceased who shared who were also aunts and uncles. Off the they were they brought 44 blood brothers or sisters off the deceased parent. So their whole blood and again, if any of the answer uncles of the whole blood had previous east intestate, then their Children, who would be the first cousins German off the intestate, they would take the share that their parent would have shared on again. Um, they would inherit at 18 if they were under 18 at the time. On if any of the aunts and uncles of the whole blood didn't have any Children, but they did predeceased the intestate. Then their share would go back into the pot to be split equally between the aunts and uncles of the whole blood that did survive and then likewise, if there's no answer, uncles of the whole blood, we're now looking at answer uncles of the half blood. So we're looking at any, um, brother or sister off the deceased parent where they shared one parent, and it works exactly the same way again. So again, split between the number off aunts and uncles living, um, if any of the answer uncles had predeceased. Then their share will pass down to their Children. If they didn't have any Children, then it stays in the pot to be split between the surviving aunts and uncles off the half blood. And again, if any of the issue are under 18. Well, if even any of the aunts and uncles are under 18 they will not inherit until they are at least 18. Right? So then that's where their living relatives ends. So what if there are no living relatives by the next people? That would be kind. Yeah, would be somebody from the crown. So the first you've got the treasury solicitor, huh? Who would apply on behalf of the crown? And you've also got the Duchy of Calm or or the Duchy of Lancaster. So if the intestate was ordinarily resident in the Duchy of Cornwall or the Duchy of Lancaster, than they would be the person entitled to inherit this person's state, um, anybody else, it would be the Treasury Solicitor on behalf of the crown. So what they do first of all, is that they searched to see if there are giving relatives so they might put adverts in the London Gazette or local papers on, then ask for any relatives to come forward. If nobody comes forward, then they can make an application for the letters of administration and then, once the grant has issued the money from the estate, go through the crown. However, if a relative turns up a later day, then the Treasury solicitor can apply to the probate registry for the grant to be revoked. A new ground issued in the name of the relative on the Treasury's lister will then pay any monies over to the relative. If, um, the Treasury solicitor decides that they don't really want to make a claim against this state because maybe it's a smaller state. There's nothing in it or for whatever reason, they decide they want to waive their right to the grant in a creditor can make an application, but they compu early make the application only to realize the debt that they are owed. They cannot recover the rest of the estate. Okay, so I hope that's given you a very brief overview off the intestine. See alot. So thank you all for watching on Look forward to seeing you all again for another installment. Thank you

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Webinar

18:52

Hello. My name is Sue you a new on in this short webinar. I'm going to introduce you to the roll off the executors on the trustee. So first of all, then we'll look at what the executor actually is on. Then we'll look at the role of a trustee and you'll see that their roles are two different roles. Who can be an executor or trustee? The types of executor, how an executor or trustee is remunerated what things the client may need to consider when they were pointing their executives and trustees on what happens if an executor or trustee is unable or unwilling to. Okay, so let's kick off with Executive, Actually is So the executor is the person responsible for applying for the grant of representation on administering the estate of the deceased. So before applying for the grant of representation, they will have to ascertain the size of the estate. Excuse me. So they will have to write to the asset holders and the liability holders on find out what was actually in the estate at the date of death. Once they have all that information, they can apply for the probate wants to get the probate. They are then responsible for paying all the liabilities after they've collected in the assets on distributing the whatever is left in accordance with the terms of the will. So it's a good idea to appoint at least two just in case one of them is unable or unwilling to act at any point during the administration. I generally encourage plants to appoint to and then maybe one or two substitutes just to make sure that there's always somebody there. Um, if a trust of land arises to executives and trustees are required in accordance with trust law. So it's always a good idea to appoint at least two because you never know what role and responsibility the trustees may need at the time when the will take effect. So although the trustee or the executor has by law a right to appoint somebody to act with themselves if they are the sole person, that might not be the person that the test data would have wanted. So I always encourage the clients to add somebody into the will themselves on executors and trustees. They can be the same people. No, always, but I can be. So what is a trustee, so the trustee is the person who will manage any trust in the will. So I mentioned earlier that the executor will collecting all the assets, pay the liabilities and then distribute the rest in accordance with the will. So if, for example, there's a trust in the will off a life interest in a property than the executors role will be to arrange for the transfer of the property into the names off the trustees. So it could be the same person. So you could have the same person, the executor and trustee so he or she could actually be transferring assets threw themselves the hold on trust for the benefit of the beneficiaries. So the role of the trustees include carrying out the express terms of the trust settlement. So in our case, the trust settlement will be contained within the will Defend the trust. So make sure that there is There are any claims against the trust, um, that they defend those claims prudently invest trust assets. So if there is a million pounds in a trust fund, they are responsible for investing that money to make sure that they can create an income for the benefit off. The beneficiaries be impartial among the beneficiaries, so make sure that they don't take the side of one or more beneficiaries against one or other of the other beneficiaries. Um, keep accounts. So I have to keep stringent accounts of money that's come in money that's gone out on bleeding on From that there would be responsible for completing trust tax returns each year. They are not permitted to delegate the responsibilities to anyone unless the trust deed specifically allows them to do that. So most of us air using the step provisions know everybody. But if we use the step provision within our wills, then the step provisions do give allowance for the trustees to delegate responsibility. They're not allowed to profit from their office, so they are there purely to invest and manage the trust for the benefit of the beneficiaries on. They are not allowed to benefit from there appointment in any way. They should not be in a position of conflict. So if any of their personal interest with a conflict with the trust, they should step down or take steps to make sure that the the area of conflict is removed Andi the They should administer the estate in the best interest off the estate or the trust and the beneficiaries, right? So who can be an executor or trustee? Um, it's probably easier to ask who can't be because, generally speaking, anybody can be provided. They are over 18. They are mentally capable. Andi. They trust the trust document or the executor. The test data in the will has not precluded somebody from acting. So we've said earlier that both roles carry a lot of responsibility. They can be complex. There can be time consuming. So the test data needs to think about appointing people that they can trust on that have the administrative capabilities on also the patients to administer in a state or act as a trustee. A might now can be appointed as an executor, but they will not be able to take up their role until they attained their majority on. It's not uncommon to see a clause in a will that says, I point my son John to be my executor, provided he attains the age off 18 but in that case is obviously preferable to have somebody else who is already over 18 just in case the test data sadly dies before the sun attains 18. And it's always good practice tohave at least two trustees appointed even if it's unlikely that the trust of land is going to arise but purely just to make sure that there's always somebody there to act in case something happens toe one or other off the trustees, I've just put a little footnote there that surprisingly and un discharged bankrupt can act as a executor or trustee. But the test data can, in the appointment clause, put a condition on that appointment and can actually preclude anybody who is at the time off his death or who becomes bankrupt after death and during the period of administration. Hey can actually preclude that person from acting during the period of their bankruptcy, right? So a little bit of background information on the types of executor, so you've probably seen some of these in an actual will, but these have got names. So, for example, the most common type of appointment is the expressly nominated appointment. So this is where somebody named somebody specifically to be their executor. So, for example, that there I point my wife, Joan, to be made sick, and then you have the holder often office. So this could be I point the manager of the Barclays Bank in Tottenham High Road to be the executor of my will. Um, limited. I point my accountant to be the executor of my state in India, or I point my accountant to be the executor off my literary estate. Another common one is toe have executives only in relation to business assets. A conditional. So this is where the person is appointed provided they meet certain conditions. And in the example cited here, Zhang has to survive 30 days before she is able to take up her role as executor on, then substituted. So in this case, we're saying that if John doesn't survive me by the requisite 30 days, he's appointing Jennifer, his daughter, act in her stead on, then this interesting one executive, according to the tenor. So I've seen this on a few occasions, especially in my previous life, where I was the manager of the London Probate Registry. You might see a home made will specifically where somebody has said, for example, oi point Fred on. I want him to collect in all my money, pay all my bills and then give all the rest split equally between my Children. So whilst yet, the test data hasn't actually said, I appoint Fred to be my executor. Um, the duties have been described in a in a way that all executives duties on. Then the last one I mentioned here is the appointment of a firm or a trust corporation. So, for example, I point the partners at the date of my death in the firm of Fred Blocks and Co. So that's quite common where you know you're working for a firm of solicitors or firm of probate practitioners. Onda firm, the partners in the firm. I'll be appointed as the executors, right? So remuneration. And so all executives, whether they lay or professional, are entitled to claim their out of pocket expenses from the estate or from the trust that could be things like telephones, postage, petrol, stationary, anything that they've incurred as in their role as executor or trustee. Occasionally you might see a clause in a will where the test data has left a specific amount of money to an executor, either in gratitude for them acting as an executor or provided by actors an executor. So if they don't act so if they stepped down or if the trust is never constituted, for whatever reason, then the executor or trustee will not act. And in that case, they won't get their money. Andi It used to be the case that nobody could claim Mawr than out of pocket expenses, even a professional, unless it was specifically worded in the will that they were able to do that. But then the trustee Act 2000 came along and actually put it in statute that a professional is able to charge from the trust or from the estate for the work that they do. But on the side, I just put a sample off a professional charging clause. And to be honest, I put one of these in every one of my wills because it makes it clear to the late trustee that if they did appoint a professional on, it's likely to be may. If I've drafted the will, then the professional is able on bond to charge or the work that they do. Andi. Interestingly, we talked if you looked at the other webinar on intro to Wills on the law of wills. We looked at who could be a witness to a will any interestingly prior to pass the Act 2000 if a executor witnessed a will, but they were then deemed to have lost their gifts because they were considered to be a beneficiary because they would obviously be claiming money from the estate. But the trustee Act 2000 decided and, well, that's not really a gift. That's a payment for doing a job. So now, as an executor or trustee, you can witness the will, which is great because our witness most of the wills that come through my hands I supervised that execution and very often step in and act as one of the witnesses. So good news for me, right? So things to consider when you're pointing executors and trustees. So we discussed the fact that it's These roles are very responsible, their complex and they can be time consuming, especially the role of a trustee, because that could go on for many years. So it's very important that executors there appointed are completely trusted on. They have the time and the resources and the capacity and capability to effectively manage in a state or effectively manage a trust that follows. So most people think about their spouse is their Children siblings. So generally speaking, they think about their family members. But it is a good idea. On Occasions, Toe have not only an independent trustee, but maybe a professional trustee. So when you talk about, for example, a complex trust in a will. So if you had a discretionary trust on there are certain tax rules that go along with discretionary trust, it might be better if, if a professional trust be were appointed. Um, just basically, a professional has got indemnity insurance, and they've got the expertise and the knowledge to administer that trust more effectively. It is a good idea to discuss having a professional trustee, and if the trust is quite often, the clients will say, Well, I want my spouse and my Children to be my trustees, but they're also the beneficiaries. So in that case they could all agree just to close the trust down, which may defeat the object of the trust that the test data was trying to achieve. So again, it might be a good idea to have an independent trustee on not only have independent trustee but have a that person as the professional again. They should consider the age of the executors, so they shouldn't be too old. They shouldn't be too young, um, their willingness to act. I always say to my clients that once the will is finalized with the client's permission, I will write to the executives. I'm not going to tell them that was in the will, certainly not going to send them a copy off it. I'm just going to send them a leaflet saying that as you are aware, you have been appointed as the executor in Mr Smith's will. And here is a little leaflet which just briefly outlines your roles and responsibilities on. Obviously, within that leaflet, I mentioned the fact that I've got a a probate in a state administration service that I can offer to them. Um, on occasions, some clients don't want me to write to be their executives. On dawn, one or two occasions I've had an executor ring me on. Once they read my leaflet, they said, No, no, no, I don't want to get involved with this. So then I had to go back to the client Andi say sorry, but you've got toe. Make a change to your will. Um, on the the other thing that we mentioned is that the test data really needs to consider what would happen if their first choice or choices, um can't act or don't want to act when the time comes. So they should make provisions for substitute executors and trustees on also the location of the executor or trustee. Um, quite often clients want to appoint executors and trustees that live abroad in this day and age with technology the way it is. It's not quite as, um a prohibitive as it used to be. But I still try to encourage parents to have a least, you know, one or two people that are in this country for just for logistical purposes, right? So it doesn't executor have to act well. The answer to that is no, because they could choose not to act, but it could be that they're unable or unwilling to act at the time that the will is tiki effect. So the executor may have died, in which case hopefully there will be substitute executors Arkan, step in and take up that role. Allow the executor may have become mentally incapable of acting. Um, if there is nobody else to take up that role within the will, and there is provisioned for either the attorney acting under a registered lasting power of attorney for the executor or their deputy appointed by the Court of Protection Toe Act in their place, three Executive may have become bankrupt. So what we said earlier that an UN discharged bankrupt can act as an executor. Only test data may have precluded them from acting somewhere within the terms of the will. But if the executive doesn't want to act, he's got some choices. He can either renounce all right to probate, but also he will sign a form to confirm that he's not Inter meddled in anyway, and he doesn't want to be involved anymore. Full stop. The second thing that the executive can do is if there are more than one executor appointed and the others are all replying that executor can have power reserved. But if he's the sole executor, he can't have power reserved because there needs to be somebody to act. So in that case, the executor can appoint a lawful attorney act on his behalf. So hopefully that's given you a brief introduction to the roles and responsibilities off the executors and trustees on. I look forward to seeing you all again for a next installment. Thank you very much for watching take care.

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NALP, NALP Unit 32, Wills and Succession, Paralegal

Instructor

Sue Ioannou

Sue Ioannou

485 Users
5 Courses
8 Reviews

Sue is the owner and managing director of A.R.T. Training and Consultancy Services Ltd which specialises in identifying, developing and delivering training solutions for corporate and personal clients. This includes drafting Wills, trusts, powers of attorney and advising clients on all aspects of estate planning including taxation advice- Inheritance Tax, Capital Gains and Income Tax- personal and trust taxation.

Having been manager of the London Probate Office for 10 years (1992-2002) and Training Manager for the Probate Service for a further 5 years (2002-2007) Sue has an extensive knowledge of Probate Practice and Procedures.

Sue is a member of the Society of Trust and Estate Practitioners, a training officer for the Institute of Professional Willwriters and a member of the Chartered Management Institute. In addition, Sue has also produced the following publications on behalf of the IPW ‘A Basic Guide to Will Writing’ and ‘A Basic Guide to Enduring and Lasting Powers of Attorney’.

Reviews

Elizabeth Darvall 2 years ago

Katherine Askew 2 years ago

Jordan Downham 3 years ago

Clare Louise Allister 3 years ago

Needs updating

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