Written and recorded by Safda Mahmood
Hello. Welcome, everybody. My name's stuff to my mood, and I'm very pleased to welcome you to today's session through data law Distance a bite sigh session as of September 2000 and 17 on, I'll be taking you through a consideration off new types of clauses and also gifts in the will, and also the reasons why people may put some of those clauses in there. So, really, over the course of the next 20 minutes or so, we're going to be taken. Issue somebody's clauses why we put these in at with a view to than giving effect. To, of course, the client's wishes. So less than start with a typical will where what you're finding is, one would then start, often with de commencement clauses on the date, so it could be a simplest. It's simply providing that this was is the last will and testament of the person concerned. So just to identify theme test a trend or circumstances, the person, of course, is only the will made for them. And sometimes you may find that in May, the opening close may, in fact, even contained the person's occupation that that's quite useful, particularly to try and identify that is definitely then them and not somebody else on, therefore really should be any doubt, insofar as who that particular person is. So that's also possible, of course, so it could simply read something like this. The last will and testament of this person on may even refer to the dates or this will is made today, before me, by me and then the day to the person that started the day to the willing also the name of a person in that regard, and that one of the other aspects is the name. It's very important to be up to named person. Specifically, Others say you may identify them by their occupation, sometimes itself, but even put in their address, for example. But of course, if a person makes a will, say, at the age of 18 Andi don't die until, say, the age of 80. And of course, the may not necessarily be still living in that same house not too well when they made a will. But nonetheless it does help to put the address in sometimes and indeed some lawyers will do that when they are preparing the wheel source to ensure that they can identify that person in that regard and the COMESA clause will then, of course, it showed s a level of intent on the person on the test status part to have this will affected for them, very important to ensure that their will is dated on the date could be inserted. Either be beginning of the willow. Indeed, at the end, it does tend to vary on the black space. You tend to find his normal put the end of the will for it to be dated there. No protest stated does use different names. That's the other thing to bury might of these different names. It's very important to ensure that all their names are put in there. So, for example, is aliases, for example, it's very important to ensure that all those are used. So if, for example, a child has got, say the name John Smith, don't. Of course, if that's their name, but also if, say, smith, this finance not only as s M I t h, but also as S and Y T h, for example. And they have some accounts, and bank cats were dimming. Smith has in S M I t H and sometimes s m Y T H D. It's very important for the wheel to identify that. So that's made very clear and that we've got. So it may simply be that this the last will and testament of me John Smith, on sometimes known as John Smith, would be alternative spelling, for example. So it's very important to identify, I mean, that we caught now. It's also very important to ensure that you have a revocation clause in the will even know the client may say to you, Look, I've never made a will before. This is the first time I'm making it, sort. It's always useful to have a express verification clause in there because for the avoidance of doubt, this Ford and revoke any previous wills that may have made and in fact wheels that they may have even forgotten they've made. So it's better to have one about 40 voices of doubt in the circumstances. So simply read something along the lines that I revoke all previous rules and testamentary dispositions, for example, it could just read something as simple as that. There's then the provisional relation to the disposal of body now in so far's, uh, if any provision in the will insofar as disposal of body are concerned, these are not binding on the executives in that regard, the Zamir requests. So it may say that they desired at their body upon death is cremated. Or is there buried? For example? You know this is not binding on the executives. It's of course, going to carry some weight. And sometimes he left situations whereby you may find that there is a dispute between family members as to whether or not the person should be cremated, for example, buried. We've buried the May dispute on have a dispute as to where the person is to be buried, whether saying this country or overseas, for example. And this is where having an expression expressed by the person in the will well, of course, helped 1/4 and then deciding which way they should be going in. Not because it could be particularly helpful in that regard, particularly if there is a dispute which arises. Then you have another provision, sometimes relation to the appointed trustees on a secretary's Now executives are going to be responsible for administering the estate, so therefore collecting in the assets paying off debts and liabilities and and distributing what trustees will be responsible for holding trust property on behalf of persons. So, for example, if a will leaves a part of the estate to, say Children, for example, and of course they themselves will don't would never be able to hold a property in the old name and therefore you require trustees toe hold the state property on their behalf might may often be the case that the same personal persons are pointed as both trustees on a secretary's, and sometimes you find it somewhat convenient indeed easier sometimes to be up to a point. The same person to them on to take both tasks on your behalf to be can get there for the task off. The administrating as a Zeca tend also to be the trustee indoor circumstance, and therefore this may well make sense. No one is activities sufficient, but of course, sometimes it may be that they renounced a pretty sees a test data. They don't wish to carry out the process, and therefore it would be difficult then to have somebody else if they haven't been appointed. So that's why it's very important to have a substitution. All provisions in place and therefore people may sometimes a 0.2 or more executives. Water May appointed executive, but then have a substitution of provisioning. That person doesn't wish to act in all circumstances in terms of who can act as an administrator. So he has executive. It is a fabulous choice there. Individuals can sometimes solicitors appointed, sometimes accountants and sometimes other professionals. The benefit of appointing an individual, of course, is the person may know them may know them personally. They trust them to maybe a friend or a member of the family. The drawback. Maybe that may not necessarily be legally qualified in there for the May need the assistance of a lawyer anyway, to help them in that regard on that could potentially cause potential problems, then potentially, delay. It's far as lawyers are concerned, of course. Sometimes look solicitors. May them be appointed. Of course, the benefit would be that day themselves would be experienced in the field, but of course they would which to charge for their services. And this is where Patera Trustee Act of 2000 came into effect. If solicitors were pointed, US executives in the world and typically would have put a charging clause in the will because without doing so, they would only be able to be paid for what's called out of pocket expenses. So to ensure that they were able to be paid for carrying out, the administration would ordinarily on often set out the fact that the solicitor would would have a charging clause in the world to enable him to charge for the work that they were doing. But since the trustee act has come into effect, uh, this has the effect that professional sector is in fact a permitted to charge for the remove ation and a reason expenses for carrying out the administration in disregard. So, in particular, Section 28 of the Trustee Act 2000 and because of that, some firms do take the view that it's not true. It's not necessary always to put charging clause in the will to enable that to be done. Now, sometimes it may be that you have Kozak to cite maybe that is an individual who is appointed, and also you may find out a particular firm is appointed, and if we may well have co executors appointed and a particular partner or directive from a firm may then be co executor with an individual who has been appointed, maybe a family member or friend. It's important to note that when you are putting together the will, very important, too. Identify the fact that the firm may change names the firm may amalgamate did make the merger, for example, it may it may start as a partnership, but that it may become a company, for example. So therefore, the persons may move from being partners to directors for examples. Therefore, all of that needs to be what wait up in that regard. And that's why it's very important when drafting, therefore, to cater for the fact that that, in fact, the the firm may in fact meet merger de emerge in that situation, if you would often be appointing the firm known as or any other nameless known by, should it be merged? Emerging Gordy, magical as the case may baits on in terms of who connectors administrate that so years, actors us mentioned it could remember the family could be professional appointees, banks on public trustees in that regard, so that could be certainly a a choice in that regard now one of the issues to bear in mind. Also, when it comes to appointment is a Zwilling appointing a sectors and trustees, it may well be necessary to appoint legal guardians in the world. The benefit of legal guardians being appointed is particularly when one has minor Children. So let's take the situation where, say, husband, wife have got a few Children on that they are making wills. They made them wish to cater for the fact that if both of them would die before their Children turn 18 who would be responsible for their for their Children's? That's where they're both made, which to appoint guardians in the will. Who wouldn't take over jointly upon the death off Botham, husband, wife and all circumstances, of course, when to do elect as to who should be, uh, the Guardian's. It's very important to consultant to ensure that they are willing to do so on that they've understand fully the expectations that are going to be placed upon them. Sometimes you have more difficulties were, say, the Muslim. The father have separated Children living with, say, the mother. She is instructing her lawyer to say that she would not wish for the father to in fact, look after Children in the event of her death before the Children turn 18. And that's where she may, in fact, which two point legal guardians to take over off after her death for the care of the child. But this is where a lot depends upon whether or not she had the benefit of a child arrangements order that specified that the charred lives with her looking to see whether or not your point of the guarding takes effect upon her death. So this is where you need to look specifically at sexual five, subsection six of the Children Act of 1989 for example, which gives some particular guidance insofar as this is concerned. Then we look at a position with the attestation clause. This is the clause at the end of the will which provides that really signed by the test, stated the joint presence and then in the joint persons of two more witnesses. It's very important to ensure that the attestation clauses amended to cater for the fact that if somebody, for example is blind or electorate that it's make made it clear that the will was actually went over to them so that they had, for knowledge of the contents of the will only approved fully at the contents within the will. So again, very, very important to ensure that that is done in so far as to various beneficial provisions in the world is his way. You love various gifts within the will. See love legacies, which are gifts of chattels or money on a device, basically, is when somebody says I device my house so it's a gift of land effectively and he got different types of gifts as well. That may in fact be 100 done sort of will. So you've got, for example, a specific legacy or device. General legacies or device on demonstrative legacies and device on a specific gift is this. It's effectively where the subject matter is easily normally defined on. It's clearly identified bond, therefore easily discernible from the vest off the estate that sites. It's a gift of a particular item or group of items off example. If somebody was to make a will, inundate, there was to say, I leave my Rolex gold watch with this particular serial number to my son. Then that most likely will be a specific gift because the word my suggests that that is the possessive nature of it, but also have clearly identified that it's that particular watches the gold Rolex watch with that particular serial number. And that's where it most likely we construed as a specific gift. A general gift. Harvey's different disease, a gift were by his long does. That gift is still within the test status estate. Then it will form part of the estate, and the person will get that. But if no such gift and remains, and the executives may in fact acquire from the rest of the estate on def, not exercise their powers under Section 41 of the administration of the States after 1925 to really appropriate some of the property so effectively, if there was a gift requiring shares in a particular company to begin to a person. But those shares were no no longer layer at the date of the test date of death that Section 41 of the administration of estates Actor Quiet allows them than to go on appropriate other shares or other property sauce, too, than really comply with the intention of the test data in that regard, then this demonstrative legacies of demonstrative gifts on these are generally nature. But these are directed to be paid for my particular specified funds, like May say that I give, say, £500 from my Barclays Bank account, for example. Six. It's £500 from particular fund, I say when the person dies, there isn't enough money in the Barclays Bank scandal as possible to appropriate by looking at the other accounts the residue to see if that the funds could be made available through that scheme. So that's where that comes in. Now, insofar as the position with other forms of gifts are concerned, we've also got, for example, pecuniary legacies begin. Your legacy, basically, is a gift off money to sometimes a gift of money is simply referred to as a particularly legacy on unders. Rescind your gift as well, of course, which is a gift, which passes the rest of deceased estate, which is not otherwise disposed off. So, for example, once you've dealt with disposing of the estate through the specific legacies to the general legacies, that demonstrative legacies on what's left, which isn't disposed office is really falling through by way of diversity, and that's what's going to be dealt with by way of part of the residue gift. Now, one of the other aspects to bear in mind in this concepts is the position with gifts that may in fact, fail on. If I just mentioned a specific gifts, for example, insofar as these are concerned, these suffer from what's known as redemption, so that, if say especially for gift, is putting a well. If it said, for example, I give my gold Rolex watch with the particular serial number to my son. Let's say the father had, in fact sold his watch before his death. Any had it replaced it, for example, or even Fiat replaced. The fact it was marked a specific gift means that in fact, the sun wouldn't take any other watch because that gift is a deemed and therefore doesn't take effect. And that's one of the drawbacks with specific gifts. General legacies have don't suffer from that, so that's one of the advantages off those. So as long as there was a watch available date of death and of course, the sun would be able to take that one now, we then have the concept off laps, which is very important, and this is where the beneficial to actually benefit on other will there must survive a test eight, generally speaking, and if the dawn on a gift to them well on the face of it laps and it reformed to residue on if it's the residue gift that fells in that particular gift would have fallen to the partial in testis see provision. There is one exception to this home from where if a person does not, in fact at survive at the test ater that, in fact a gift to them wouldn't necessarily lapse of such unfold into in testis sea or into residue. And that's when we look at Section 33 off the wheels Act 18 37. Not this effectively provides that if a gift no will is left a test status child or we might remote issue. So say, for example, a mother leaves a gift off Money's, let's say to her son or grandson, a great grand son. But then that person dies before the mother, Andi survived by their own issue and therefore their own child. Then what Section 33 provides is that in the absence of any contrary provisioned. Will the gift the disease child when, in fact, then go to remote, remote issues? So, putting it another way, they say, a mother left her car to her son and he died before her, but he left his own son done. In fact, in the absence of any country provisioned well, Section 33 has the effect that this car would actually go to the to the grand, selling that circumstances so effectively heat and takes what he's deceased. Father would have taken the circumstances. That's very important to bear in mind that section $33 on you apply in the absence of any contrary provision. Well, so it's important. Two obviously bear that very much in mind, so it's very useful to bear this in mind. But also in practice, you find that lawyers will still include next best substitution all gift in the will just to make it clear to all parties concerned that that's what would happen in the event of the issue. Pretty season. The test status a soldier everybody's then very clear now sometimes is a gift is not very clear in the sense that if If there's uncertainty as to who it is, that's to be benefiting. For example, example under may not benefit in that regard. So, for example, if the gifts said that I leave £10,000 to my nephew, for example. But the person has got four nephews them in that situation to give my foul because simply uncertain as to which nephew that they were referring to the other provisions. Section 15 of the World's Act, which the very important provisions which says this when you are putting a well together, as I mentioned earlier, it's very important to ensure that its the attestation clause at the end to size to enable the Test eight Science presents two more witnesses now Section 15 of the Wheels Actress Important because the specifies who can actually act as witnesses. In fact, Section 15 provides that gift to a beneficial would in fact fail if the beneficiary or he's a her spouse, in fact, witnesses the will. So, for example, of husband that sorry unless their father, let's say, is leaving a gift to his daughter but his daughter's husband than witnesses. The will, an effect of that is a daughter wouldn't get a gift in all circumstance. Ordinarily, the reason for that is because, of course, there is a risk that the daughter may, in fact, of all other husband may have influenced at the daughter in that situation, in turn influencing to father to leave a gift to her. So that's the thinking behind us. There is an exception to this. Having that as long as there were two other non offending signatures than the offending signature can in fact be ignored in the circumstances. So there is an exception that rude in that regard. Sometimes what we would do is we put We were putting wheels. Certainly. Statement setting out wire person is not being left a particular gift in the world, but as an alternative that more commonly, we find that we love let's of issues or statements that people put together setting out. Why did I do not wish certain people have benefits for them will. And this is particularly to ensure that this caters for the fact that if there is going to be a claim brought against the estate by under what's called the inheritance provisions for fun Independence act, then it's made very clear by way of looking at these let's of wishes and the statements us to thinking behind why that person didn't which to leave a gift to that person. It's very important also to cater for the fact that there may well be substitution of gifts that need to be provided should be the case that beneficial does. In fact, Pretty sees the test data. Also, there's various administrative clauses as well, which may well be put together. And a lot of these now I need to be read in light of the Trustee Act 2000 which came to effective February 2001. So, for example, is the power off appropriation Section 1400 mentioning as far as the position with general legacies, There's various other administrative closes and many of these you'll find that the dustman will actually referred to the steps conditions, which will actually actually incorporate many of thes administrative clauses in any event, without having to dance Belda Matt in the will. So this, for example, of power to ensure Section 19 off the Trustee Act 1920 photo is very important, enabling insurance off trust property. Does the power investment on the trustee yet 1961 for example, there's also to play important powers. There's the power off maintenance section. Think one of the trustee Act has amended, which enables monies that have been invested through the income from, say, the money that's been yielded to be used for educational majors generally. And then there's a power off advancement in the section 32 for the actual monies from the trust too much to be in a book to be utilized and given to the person even before the Turn 18 in certain situations On. That is also, for example, of business clause, which allows then the trustees, for example, to continue running the business until such time. That says felt that hurt the business money to be solved, for example. So there's various administrative clauses also, which may also be put within the will aside mentioned. Okay, so you can see when we're looking at will's. There are various clauses, really all throughout the wheel, which need to be potentially then pulled together so as to make the will really take effect has purport the test ater, intended in the event of their death, cannot thank you very much for listening. I hope has been used for for you today on by speaking extent, thanks very much. Bye for now
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