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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.

 

Product liability and Ikea

Beth Wallace
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Recent news reported Swedish giant Ikea had agreed to pay $46m to the parents of a child killed when the company’s Malm drawers toppled over, suffocating him in May 2017. This may shock some, given the presence of the Malm range in so many homes...

Miscarriage, childbirth and psychological injury

Robert Dempsey
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A report in the news today (15 January 2020) highlights findings that miscarriage may lead to long-term post traumatic stress.  The study of 650 women carried out by Imperial College in London found 29% of women who had had a miscarriage showed the...

FAQs: Winter weather and personal injury claims

Cristina Parla
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Every week, The Law Society invites law firms to take part in #solicitorchat hour on Twitter, which provides the opportunity to answer popular legal queries.  On 23 January, I took part in the Personal Injury session (and won!)  Here’s...

Brain injury and sport

Robert Dempsey
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In light of the recent news that Scotland is set to ban children under 12 heading the ball in a game of football, we felt this earlier blog was particularly apt to share. It shows that the consideration of development of later health issues as a result of...

Update on the intestacy rules

Joseph Stoehr
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If someone dies without a will (or without one that is valid), the intestacy rules dictate how much of their estate their partner, children and other relatives inherit. Legislation passed yesterday – the Administration of Estates Act 1925 (Fixed Net...

Ethical veganism recognised as a "philosophical belief"

Laura Hill
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Last week, an Employment Tribunal ruled that “ethical veganism” constitutes a philosophical belief and ethical vegans stand to be protected by the Equality Act 2010 (“EqA 2010”). The case of Casamitjana v League Against Cruel Sports. ...

So you think you have a personal injury claim?

Beth Wallace
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Having begun my training contract with a first seat in the Personal Injury department, it has proven to be a steep learning curve to arm myself with the knowledge and legal basis upon which we might assess the prospects of a potential personal injury...

A right royal lesson

Neil Denny
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It’s impossible to predict what decisions our children will make in the future, or what might happen along the way. The impact they will have on our financial planning and dynastic wealth protection, therefore, is a complete unknown.  In other...

Separation and the Capital Gains Tax trap

Neil Denny
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Separating from your spouse or civil partner at the wrong time could result in you having to pay Capital Gains Tax (CGT) that you could otherwise avoid. CGT is payable when you dispose of an asset whether you sell it, gift it or are ordered to transfer it...

All I want for Christmas is... paid invoices

Catherine Rickett
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As a business, you may have seen an increase in sales during the run-up to Christmas – which is great news – until your customers are late making payment and your cash flow suffers as a result. It’s pretty common for people to overspend at...

Food businesses and Brexit : addresses for exports to the EU

Julie Robinson
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The Q & A below is about addresses on pre-packed foods exported into the EU. It is aimed at Food Business Operators (FBOs) in Great Britain and covers the position if we leave the EU:- without a withdrawal agreement in place; or having left...

Five ways female car drivers can protect themselves legally

Cristina Parla
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According to statistics, Britain is dubbed the “road rage capital of the world” – a rather fetching title – with up to about 80% of people fallen victim of it. It doesn’t matter how long you’ve been driving, how...

Cycling to the polls

Robert Dempsey
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As well as being an increasingly prevalent group of road users, cyclists are also amongst the most vulnerable.  With this in mind, Robert Dempsey, a personal injury lawyer at Roythornes Solicitors, has sifted through the manifestos of the main political...

Retrospective planning permission granted for holiday accommodation within open countryside

Natasha Bicknell
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Retrospective planning has been secured for the Warwickshire site of TinyWood Homes thanks to a partnership between Roythornes Solicitors and Grace Machin Planning & Property .   TinyWood Homes is a luxury glamping franchise with sites...

Resist the temptation to take the money and run

Lynda Thompson
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Sometimes if you’ve been involved in an accident which wasn’t your fault, the other party’s insurers will make an early offer to settle your claim, often at the same time that they accept liability for your accident. A...

Time and tide (and the MOD) wait for no man

Tim Edwards
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The Personal Injury department at Roythornes is renowned for successfully handling claims brought against the MOD, and so we are often contacted by both serving and retired members of HM Forces.  The enquiries are usually about a possible claim arising...

Does my website need a cookies consent pop up?

Julia Seary
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In the new age of GDPR and rigorous electronic data protection laws, the availability and use of cookies can no longer be taken for granted.. In terms of data, a cookie is a text file with the ability to track your activity across the internet and...

Should you change your charity's structure?

Julia Seary
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Your charity’s legal structure and constitution set out what type your charity is and how it should be managed.  There are four common types of charity structure:  charitable incorporated organisation (CIO) – either the...

Recent case rules in favour of agricultural property relief for elderly farmer

Ben Taylor
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The recent case of Charnley and another v HMRC [2019] has seen the law firmly placed on the side of the farmer in this important appeal against HMRC. Ben Taylor, solicitor at Roythornes Solicitors , looks at why this is significant. Grazing...

What happens if I have no will?

Joseph Stoehr
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If you don’t have a will yet, you’re not alone.  It was recently estimated that somewhere between 50% and 60% of adults in the UK do not have one.  Many assume their loved ones will automatically inherit their estate - but that’s...

Cars and cyclists - friends or foes?

Robert Dempsey
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If you had to create a simple Venn diagram of drivers and cyclists, there would be a significant number of people who would occupy the central sector.  Yet you would be forgiven for thinking these two groups, cyclists and drivers, are diametrically...

A space to live or just a space?

Carolyn Byrne
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A taxpayer has won an important victory over HM Revenue & Customs (HMRC) in a case involving a claim for principal private residence (PPR) relief.  Had HMRC’s view been upheld it would have meant that it was possible to “occupy” a...

The scope of Section 73 - only taking you so far ...

Shruti Trivedi
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In a very helpful decision handed down in the Court of Appeal this week, in the case of John Leslie Finney v Welsh Ministers, Carmarthenshire County Council and Energiekontor UK Limited [2019] EWCA CIV 1868 , some interesting arguments as to the scope of ...

Computer says no?

Carolyn Byrne
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Whilst some of us were spending Halloween ‘trick or treating’, HM Revenue & Customs (HMRC) were carving out a Technical Note which sought the introduction of legislation to confirm the legitimacy of using automated processes for serving...

Recommendations for the Residence Nil Rate Band

Abbie Boon
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A chapter in the recent Office of Tax Simplification’s (OTS) report, “Simplifying Inheritance Tax”, is dedicated to the Residence Nil Rate Band. This was much anticipated by our Private Client team as it is a complex area of Inheritance Tax...

Arbitration - how Paul Hollywood and his wife kept his divorce financial settlement out of court

Neil Denny
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Newspapers are reporting that Paul Hollywood, of The Great British Bake-Off fame, has chosen to settle his divorce financial matters out of court.  He and his wife have chosen to use a process called family arbitration. There will be several advantages...

New year - new Trust Registration Service

Carolyn Byrne
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Trustees need to be aware of changes to HM Revenue & Customs’ existing Trust Registration Service (TRS) that are due to come into force early next year and which may have a wide-reaching impact upon trust compliance requirements.  Background...

Changing which parent a child lives with - parental alienation

Neil Denny
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Parental alienation continues to be increasingly recognised by the family courts.  What is more, judges are taking increasingly robust steps to resolve situations where one parent turns a child or children against the other parent. In the recent case...

FAQs: Lasting Powers of Attorney

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Most of us understand the importance of making a will in order to ensure that our affairs are taken care of as we intended on our death.  However, less of us consider the importance of Lasting Powers of Attorney (LPAs) and what would happen if we are no...

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?

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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...

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...

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...

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...