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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.

 

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?

Joel Tweddell
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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

Nadine Wealands
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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,...

Grant of probate fees are expected to rise

Tamsyn Lees
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Following Elizabeth Young’ s blog back in November 2018 , an increase in fees for applying for a grant of probate is still expected - but not for a least another 21 days. So, in preparation, what will this mean for executors making an application...

Inheritance Tax hacks - plan now to reduce your liability

Elizabeth Young
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Much of my time is spent advising on Inheritance Tax (IHT) and the ways in which people can reduce their liability. After all, IHT is very often viewed as a voluntary tax as there are legitimate ways in which the liability can be reduced and, in some cases,...

Brain injury and sport

Robert Dempsey
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In the space of just a few days, the charity Headway,  which offers support to victims of Traumatic Brain injuries, has had reason to be critical of FIFA, football’s governing body, following serious head injuries on the pitch. On 17 of...

PART 1: Pushing Mo to his Personal Best for AvMA

Robert Dempsey
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After weeks of “training” for the London half marathon the weekend of the race finally arrived. The Friday before was not ideal preparation. A routine dental check- up resulted in 3 mouth numbing injections and a filling. It dawned on me I...

Defending a legal claim against you

Cristina Parla
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We talk a lot about how we can help if you have suffered injuries and financial losses as a result of an accident that wasn’t your fault .  But we receive a significant amount of enquiries from people who have received court documents through the...

Trustee disqualification

Julia Seary
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The Charity Commission has used its legal powers to suspend and remove two individuals, who were trustees of The Suyuti Institute charity, for misconduct and mismanagement.  This means they are disqualified from being trustees or from holding...

The Charity Commission focuses on charities not reaching their potential

Julia Seary
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The Chair of the CC, Baroness Stowell, yesterday spoke of the need for charities to continue to strive to live up to public expectations so that the sector can be a much-needed source of hope, identity and pride.  The Charity Commission is focused on...

Workers' rights to itemised payslips

Desley Sherwin
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With effect from 6 April 2019, all workers (not just employees) will have the right to receive an itemised pay statement.  This will include, for example, workers on zero hours contracts. Employers are currently required to keep a sufficient record...

Understanding the role of an executor

Naomi Message
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End of life planning is something that we all have to do. As an individual, a will is arguably one of the most important documents we have to create, so it's worth taking the time to get it right and understand the different elements.   It is...

The challenges of running for AvMA (or "The Lonely Mess of a Long Distance Runner")

Robert Dempsey
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On the 10th of March I’ll be running around London in a half marathon - more specifically, the bit around the Thames that you see at the end of Eastenders. The reason? To raise money for the charity Action Against Medical Accidents or...

Ministry of Defence to issue ID cards to service leavers

Cristina Parla
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From 18 February 2019 armed forces veterans will receive an ID card which will help them access specialist support and services.  The new ID cards will be issued to veterans leaving the military since December 2018.  The Ministry of Justice has...

New legislation to restrict landlords' ability to request large deposits

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On 12 February, the Tenant Fees Bill 2017-2019 received royal assent and became the Tenant Fees Act 2019 . This legislation, when it comes into force on 1 June 2019, will apply to tenants and prospective tenants of Assured Shorthold Tenancy Agreements and...

Digital probate service: DIY probate

Esther Woodhouse
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Since 2017, HM Courts and Tribunal Services (HMCTS) have offered an online service enabling individuals to apply for a grant of probate in a deceased’s estate, providing certain criteria were met. HMCTS have now updated the system, now allowing...

Charging orders - an effective debt recovery tool

Martin Spencer
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So, you have an unpaid invoice, issued legal proceedings and obtained a county court judgment against your debtor. What happens next? It’s likely that if you have reached this stage, your debtor has not been particularly co-operative and you need to...

Adverse weather and travel disruption policies

Laura Hill
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Bad weather and issues with travel arrangements can cause significant amounts of disruption to a business and employers are often put in a position where they have to decide at the last minute what to do to adapt working arrangements to ensure that...