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FAQs Wills

What is a Will?

A Will is a legal document which takes effect on death.  A Will does not affect how you deal with your assets in the meantime: you can still buy, sell or give away your assets as you choose.  That said, if you specifically gift an item in your Will and no longer own it on your death that gift would fail so some degree of caution is required in this regard.  

A Will can be revoked by you at any time so long as you have mental capacity to do so and is automatically revoked on marriage unless it has been made in contemplation of marriage.

What will happen to my estate if I die without a Will?

How an estate is dealt with when a person dies without leaving a valid Will (known as an intestacy/dying intestate) will substantially depend on their individual circumstances.  Married couples often assume that their entire estates will automatically pass to the survivor of them but this is not necessarily the case. For more information see the intestacy flowchart here.

The consequences of passing away without leaving a valid Will can be particularly awful if a married couple die within a short space of time to one another.  Where a married couple each have their own children from an earlier relationship, for example, their estates would pass to the children of the second person to die via the intestacy rules (the law which governs who should inherit an estate if there is no valid Will), excluding the children of the first person to die which is often not what is intended!

Do I need to involve a lawyer in the Will making process?

Whilst you do not need a lawyer to create a valid Will we do strongly recommended that you take legal advice.  There are a number of things which can easily go wrong when a Will is written and executed without the involvement of a suitably qualified lawyer.  There are various issues to consider when making a Will in order to ensure it is valid and drafted in the most appropriate way:

Key issues for a valid will

  • Mental capacity
  • Knowledge and understanding of the Will
  • Any potential claims against your estate
  • Ensuring the words used are clear and unambiguous
  • Absence of undue influence
  • Complying with the legal formalities
  • Inheritance Tax advantages and disadvantages of drafting your Will in a certain way
  • Contentious property and land matters

Some of these issues, if not correctly dealt with, can lead to a Will being challenged either in whole or in part resulting in disproportionately high costs and may cause long-lasting family feuds.

What do I need to think about when making a Will?

It is important that you consider what assets you own and what liabilities you owe (known as your estate) and who you might want to leave your estate to (“Beneficiaries”).  You also need to give some thought as to who you would like to appoint as your Executors (the people responsible for dealing with the administration of your estate).  If you have infant children it is really important to think about who you would want to look after them (known as Guardians).

When should I need to review my Will?

You should review your Will at regular intervals, at least every 5 years, to ensure it still reflects your wishes and that it is still drafted in the most appropriate way bearing in mind any changes in the law which may have occurred in the meantime.  It is important for you to review your Will when there is a change in circumstances such as the birth or death of a family member.

How do I amend my Will?

Wills can be amended by creating a valid Codicil, a document changing one or more clauses within a Will or adding one or more clauses to a Will.  In order to be valid a Codicil has the same requirements as a Will.

How might I revoke my Will?

Wills are revoked automatically on marriage unless they are made in contemplation of marriage.  There are a number of other ways you can revoke a Will but you must have the necessary mental capacity to do so which not only requires an understanding of the revocation itself but also an understanding of the Intestacy Rules (the law governing the distribution of the estate of a person who dies without a Will).  Before revoking a valid Will it is always best to see the advice of a lawyer to understand how to go about it and the consequences of revocation.

How can I protect my estate on my death?

This question has become more frequent in the last few years, typically with people living longer and with complex family structures becoming ever more common.  Often couples want to ensure the survivor of them is well provided for whilst protecting the capital of their estates for their children, grandchildren or other family members.  We can ensure the capital of the estate of the first person to die is protected against a number of possible scenarios including marriage/remarriage of the survivor, financial difficulties of the survivor or family disputes between the survivor and the intended ultimate Beneficiaries which might otherwise result in them being disinherited.

There are a number of different structures we can recommend for inclusion within a Will depending on the individual circumstances, all of which have their own benefits and drawbacks which we would be happy to discuss with you.

 

Getting divorced after a no-deal Brexit could be much more expensive for European couples

Neil Denny
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If the United Kingdom leaves the EU without a deal, then the cost of getting divorced in some cases will increase dramatically. If both partners in a marriage currently apply to different countries in the EU for a divorce, then the country where the first...

Proposed off-payroll working changes

Carolyn Byrne
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Whilst the uncertainties and dramas surrounding Brexit seem to be dominating the attention of Parliament (and the headlines!), in the background the draft Finance Bill 2019/20 is slowly making the rounds.  The bill contains important changes to...

What to do if you receive a Planning Enforcement Notice

Charlotte Lockwood
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Charlotte Lockwood, associate in the Planning team at Roythornes Solicitors, looks at the practical steps you can take if you receive a Planning Enforcement Notice. The first thing to say is that, in most cases, the receipt of a Planning Enforcement...

Homemade wills - worth the risk?

Jennifer Valentine
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A will is one of the most important documents you will ever make, but many people are turning their back on the conventional method of seeing a solicitor and, instead, preparing their own homemade versions.  Although homemade wills are inexpensive, the...

What is a consent order and why do I need one?

Neil Denny
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A consent order in divorce or separation proceedings formalises any financial agreement that you and your partner have reached and converts it into a binding, final order. The order specifies who will pay or receive what with regard to income, capital in...

The Good Work Plan

Desley Sherwin
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In the same time as it takes to boil an egg, let me present an overview of "the biggest package of workplace reforms for over twenty years". Following an independent review of employment practices undertaken by Matthew Taylor - the Head of the...

The importance of getting your dates right when bringing a claim

Cristina Parla
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The key area I am focusing on today is getting your dates right.  You might wonder why this is so important, but the success or failure of a claim can largely depend on the evidence obtained at the outset of a claim. Pursuing a personal injury claim...

Supreme Court judgment: what now for the Agriculture Bill?

Julie Robinson
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The constitutional ramifications of today’s Supreme Court judgment will be debated and commented on for years to come. Of immediate interest to farmers and everyone involved in agricultural policy-making is what the Court’s judgment means for the...

Top tips for obtaining planning permission for farm-based developments

Charlotte Lockwood
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Charlotte Lockwood, Associate in the Planning team at Roythornes solicitors, takes a realistic look at what farmers can do to stand the best chance of obtaining planning permission for farm-based developments, particularly those in sensitive areas such as...

Charity regulators promise closer collaboration

Julia Seary
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The Charity Commission and the Information Commissioner have today published a new Memorandum of Understanding (MoU) which aims to enable closer working relations between the two regulators, including the exchange of appropriate information, in order to...

SORP is on the regulator's radar

Julia Seary
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The public continue to be concerned about financial transparency within the charity sector; charities’ accounts enable trustees to communicate effectively with interested stakeholders and provide assurance in terms of financial stability and accounting...

Non-Contentious Probate Fees Order 2018 - a sigh of relief?

Esther Woodhouse
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As Brexit continues to take centre stage in the headlines and with the recent discontinuation of Parliament, it is not surprising that the Non-Contentious Probate Fees Order 2018 has been languishing in the House of Commons since April 2019.  However,...

"Terrible burden" to be lifted from families with missing relatives

Elizabeth Young
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The long-awaited introduction of The Guardianship (Missing Persons) Act 2017 will relieve “a terrible burden” on the families of missing people. Introduced in July 2019, the Act is intended to relieve the legal burden on the families of...

So close but yet so far - the end of no fault divorce reform?

Neil Denny
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The recent developments in the Houses of Parliament have ended the immediate prospects of no fault divorce reform. The Divorce, Dissolution and Separation Bill had been making swift progress towards becoming law.  It was proving to be a popular...

"Show me the money" - how will the court deal with hidden assets in divorce?

Neil Denny
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This is our second article exploring disclosure within divorce and dissolution of civil partnership proceedings.  The first article called “Divorce and financial disclosure” can be found by clicking here. This article explores how courts...

Recent claim success: dangers on your doorstep

Cristina Parla
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I recently acted for a client in connection with a claim against Essex County Council as a result of an accident on the highway. The facts of this case are relatively straightforward but there were some slightly unusual factors afoot. The facts The...

Buying and selling your home: Capital Gains Tax and Stamp Duty Land Tax

Ben Taylor
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When it comes to buying or selling your home, there are two important taxes to bear in mind: Capital Gains Tax (CGT) and Stamp Duty Land Tax (SDLT). Recent case law has highlighted arguably a growing difference in the approach to these taxes at HMRC in...

Divorce and financial disclosure

Neil Denny
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When a couple resolve financial matters at the end of their marriage or civil partnership, then it is necessary for both parties to provide full and frank disclosure of their financial circumstances. One or both of the couple often remain sceptical that the...

A parents' guide to assisting a child in a house purchase

Abbie Boon
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With the average house price having increased over 40% over the last 10 years*, it is increasingly common for loved ones to assist when buying property. It is important that the terms of this assistance are agreed in principle, advice taken and terms...

What to do if someone dies abroad

Rhiannon Coleman
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When a loved one dies abroad it can be difficult to know where to start, particularly if you are new to the estate administration process and are having to deal with an unfamiliar system in stressful circumstances. Who should you inform when someone dies...

A cautionary tale about divorce financial advice from friends

Neil Denny
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The tabloids have been reporting on a cautionary tale about divorce finances - the temptation to hide assets and the danger of relying on advice from the wrong places. Meet Mrs Byrne. Mrs Byrne was thinking about divorcing her husband. The problem...

Earnings after divorce - will they be shared?

Neil Denny
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The 2018 case of Waggott v Waggott confirmed that there is no presumption of sharing income, even very high levels of income, after a divorce. The recent case of O’Dwyer v O’Dwyer has revisited this thinking and provided some additional...

Changes to Capital Gains Tax on the sale of residential property

Carolyn Byrne
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Thinking of selling your home? Don’t get caught out by the latest changes to Capital Gains Tax from HMRC. In this blog, Carolyn Byrne highlights the key facts and explains who needs to be the most vigilant when it comes to future property sales. ...

How to keep up your cash flow

Catherine Rickett
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Health, wealth and happiness are the three most important things in our lives. But if you are a small business owner (less than 50 employees) the fact that your clients are failing to pay your invoices on time, may be making you ill. Not having the money you...

Pensions in divorce - offsetting, what is it and what are the risks in it?

Neil Denny
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When a couple gets divorced then one or both parties’ pensions might be distributed between the couple. In many cases this is done by the pension owner having a percentage of their pension being deducted from their fund.  That percentage is then...

The summer holidays are upon us but are your plans in order?

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As the school holidays approach, many people are busy making last minute plans to get some much needed sun. However, whilst you may be a parent or a person with care of a child, do you have the legal right to take them away? Many people, particularly...

Calculation of personal injury compensation continues to benefit claimants

Robert Dempsey
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On 15 July 2019, the Justice Secretary, David Gauke, announced the new Discount Rate figures used to calculate future losses in personal injury claims. Where a claimant’s injuries are long term or permanent, they may receive a lump sum award to...

Discretionary trusts in divorce law - are your trust assets safe in divorce?

Neil Denny
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A couple of recent cases have repeated the assertion that the concept of “judicious encouragement” should be consigned to the history books. Judicious encouragement was the practice of a family court judge ordering a potential beneficiary of a...

Will I have to share the pensions I earned before we got married?

Neil Denny
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The recent Pensions Advisory Group report suggests that there are four answers to the “pensions before marriage” question. We need to be clear on a bit of terminology, however, before looking at the answers. First, remember that pensions can...

New guidelines on pensions in divorce - the unwelcome need for pension reports

Neil Denny
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Pensions are often some of the largest assets in divorce settlements and can also be the most widely misunderstood. Neil Denny, divorce lawyer in Nottingham, explains that “because pensions do not typically provide an immediate benefit, it can be...

Strawberries, cream and occupiers' liability

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With the Wimbledon tournament opening on the 1 July 2019 we have seen the emergence of a new £70 million roof on Court One. Not just creating an impressive appearance to one of the largest courts, this also allows for the games to be sheltered from the...

FAQ: travel claims

Cristina Parla
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Every week, The Law Society invites law firms to take part in #solicitorchat on twitter and gives them the opportunity to answer a few quick legal queries. On this occasion our Personal Injury team won! Here’s what happened … How can a...

Don't sweep accidents at work under the carpet

Robert Dempsey
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Monday 17 June saw two contrasting stories relating to the Health and Safety Executive’s efforts to prevent injuries or fatalities in the workplace. Radio 4’s “Farming Today” featured Andrew Turner, Head of Agriculture at the HSE....

Avoiding unpaid invoices as a wedding vendor

Catherine Rickett
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If you’re a service provider in the wedding industry, this is your time of year to shine. Whether you are a photographer, a make-up artist, or a venue, how do you protect yourself from the last minute cancellation of a wedding? Unfortunately this can...

DIY probate VS using a lawyer

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DIY probate application Much has been written and spoken about the proposed hike in probate fees recently – likely to cost families, they say, £145m in the first year.  ‘They’ say the reason for the increase is to modernise...

Bereavement and estate administration - are you struggling to know where to start?

Esther Woodhouse
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Bereavement is an emotive subject and certainly not something any of us likes to talk about but, sadly, it is an inevitable fact of life.  When this actually happens to your family or a close friend there is undoubtedly nothing that can fully prepare...

Corporate transparency and register reform consultation: protection for transgender directors of UK limited companies

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On 5 May 2019, the Department for Business, Energy & Industrial Strategy published a consultation to reform corporate transparency. Generally, the consultation looks at guarding against the misuse of UK corporate entities and balancing transparency...

Becoming carbon neutral: how can businesses help the UK become more eco-friendly?

Faith Horne
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Ambitious targets for the UK to become carbon neutral by 2050 have been announced by the Committee on Climate Change, which is calling on the government to step up and lay down the law for the nation to proactively take steps to lower its carbon footprint....

Update: Bereavement damages

Tim Edwards
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Bereavement damages have been in the spotlight again following the recent decision of the Court of Appeal in the case of Smith v Secretary of State for Justice. Bereavement awards in England and Wales are provided for under the Fatal Accidents Act 1976. The...

Six principles to help protect your charity when working closely with non-charity organisations

Julia Seary
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The Charity Commission has issued guidance to assist trustees managing their charity’s connections with non-charities (such as trading subsidiaries).  Essentially charities are being reminded by the regulator to act with probity and ensure that...

The growing threat of cyber crime: five protective steps

Julia Seary
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A recent government survey has revealed that over two thirds of high-income charities had recorded a cyber breach or attack in 2018. Of those charities affected, the vast majority (over 80%) had experienced an attack in the form of fraudulent email...

UPDATE: Wild birds and licences

Julie Robinson
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This article focuses on action you need to take to stay within the law if you are controlling wild birds to prevent serious damage to livestock, feedstuffs, crops, fruit etc., previously covered by General Licence 04. The legal position The basic...

Do farmers still do joint ventures?

Julie Robinson
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Julie Robinson, head of our agriculture team, answers a question from a client. The short answer to our client’s question is yes. Farm businesses are engaging in a whole raft of collaborative ventures as they focus on increasing their...

Revocation of General Licences to kill wild birds : implications for shooting agreements

Julie Robinson
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Julie Robinson, head of Roythornes Agriculture team, considers the implications for landowners and shooting syndicates of Natural England’s revocation of general licences 04/05/06. As of 25 April 2019 anyone shooting the species of wild birds...

No-fault divorce - a step forward

John Boon
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On 9 April 2019 the Justice Secretary, David Gauke, announced that the Government would introduce legislation, as soon as possible, to allow married couples to divorce without blaming the other party for the breakdown of the marriage/civil...

Government announces plans for no-fault evictions to be scrapped in England

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By Kelly Willows and Michelle Moore The Government has announced plans on to scrap Section 21 notices in order to protect tenants from unethical landlords and to give them more long-term security. What is the current law? Landlords in England can...

Ten top tips for charities operating with a non-charity subsidiary

Julia Seary
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  Ensure that the purpose of the non-charity subsidiary is to help the charity to make a positive difference for its beneficiaries. The linkage must be for one of the following purposes: trading to raise money for the charity; carrying out...

Commercial Agents Regulations: new guidance on valuing compensation

Peter Cusick
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The recent (6 March 2019) High Court decision of Green Deal Marketing Southern Limited v Economy Energy Trading Limited and Others has a number of interesting facets, but arguably its greatest contribution is in relation to the question of how to value an...

Leaving the EU with no deal - will I still get my 2019 BPS payment?

Julie Robinson
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In this short article, our Head of Agriculture , Julie Robinson, takes a look at what happens to UK farmers’ right to direct payments under the CAP if we leave the EU without a deal on 12 April. If the UK leaves the EU without a deal on 12...

MIPIM 2019 - Roythornes' reflections at year three

Shruti Trivedi
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It does not seem that long ago that we were frantically preparing for our first ever attendance at MIPIM, but having just attended the third consecutive year, it is noteworthy to compare our experiences over the recent years and to monitor what, if any,...