Author: Anthony Cheverall

Most people don’t like to think about their own mortality, but planning for the future is important to ensure your property, money and possessions are distributed the way you intend. Here. Alvin David, one of our Wills specialists, offers his thoughts on a very important subject…

A study from YouGov in 2017 found that 62% of the UK’s adult population did not possess a Will. In fact, most people tend to put it off, with only 36% of 45 to 54-year-olds saying they have a Will, compared to 67% of over-55s. When asked why they hadn’t made a Will, the main reason was simply that they “hadn’t got round to it yet”.

If you’re among the majority of people in the UK who haven’t drafted a Will, this article covers why you need one, how to go about making one, and what could happen if you don’t.

Why do I need a Will?
The simple reason for having a Will is also the most obvious: to ensure your wishes are fully met after you die. It’s the only way to guarantee your estate – which is made up of your money, possessions, property and any investments – goes to the people or causes you care most about. This should provide financial security to your family and their descendants, while Wills can also be used to outline guardian arrangements for any children under the age of 18. Dying without a Will or having an ambiguous will can cause family disputes, so making your wishes clear should mitigate any potential for conflict. 

If you’re married or in a civil partnership, having a Will is less important as your spouse or civil partner will be your next of kin and beneficiary to at least half of your estate. However, your partner has no right to inherit your estate without a Will if you are unmarried or have not entered into a civil partnership.

How do I make a Will?
A good place to start is to value your estate by drawing up a list of your assets and debts. This is something you should review every time your circumstances change. Assets usually include any property you own, savings, insurance or endowment policies, pensions that may pay out a lump sum on death, and stocks, shares or investment trusts you may have. It’s also important to take into account any debts, such as mortgages, overdrafts, bank loans and credit cards, when calculating the total value of your estate. From there, you need to think about how you want your estate to be distributed and to whom.

Make it clear who stands to benefit from your estate and if you want to make any charity donations. Then it’s time to pick the executors of your Will – the people, or person, who will distribute your estate to your beneficiaries after you die. This role should be fulfilled by someone you trust implicitly, although you can appoint up to four executors to manage the administrative work, to check each other and balance judgements.

Tax considerations
When you’re thinking about what you want your beneficiaries to receive, you’ll need to take the tax on your estate into consideration. Estates above a value of £325,000, or £650,000 for a married couple or civil partnership, could be liable for inheritance tax (IHT) at 40% on the excess. An additional threshold of £150,000 (rising to £175,000 in 2020/21) can be used on top of this for passing on a family home to direct descendants, as long as it meets qualifying conditions.

You can reduce the value of your estate by giving certain gifts, as long as you do this at least seven years before you die. There are also some types of gift that are exempt from inheritance tax altogether, whenever they are made. Other complex rules and exemptions apply to IHT, so be sure to talk to us before making gifts as part of your estate planning.

What makes a legally valid Will?
If you feel compelled to draft a legally valid Will on the back of an envelope, you will need to apply strict criteria for it to be binding. For instance, you must be an adult of sound mind, and draft your Will voluntarily. The Will must also be made in writing. When you sign it, you will need to be in the presence of two adult witnesses, who also need to add their signatures to confirm they witnessed the process.

Another important thing to consider is that your witnesses, or their married partners if they have any, must not be any of the named beneficiaries in your Will. You cannot make a legally valid Will under duress or with no witnesses present.

The same criteria apply when it comes to reviewing your Will. If you have been diagnosed with dementia or a serious illness, you can still make or update your Will as long as you’re present, mentally capable of making a Will, and able to direct someone to sign it on your behalf. Any Will signed on your behalf should also contain a clause saying you understood the Will’s contents before it was signed.

Can a will be updated?
Yes – and you should always update your will when your circumstances change or, as a rule of thumb, review it every five years. Changes of circumstance could include the birth of a new child or grandchild, getting married or entering into a civil partnership, or even moving house.

It’s general practice to add to an existing Will, rather than conduct a wholesale update, and this is known as a codicil. This also needs to be signed and witnessed. Alternatively, if you need to make substantial changes, you can draft a completely new Will. This new Will must contain a revocation clause to prevent the legal effect of any previous Wills or codicils. Marriage, remarriage or entering into a civil partnership cancels any previously existing Wills.

Divorce does not cancel an existing Will but merely causes any gift to the divorced spouse to no longer be applicable. Whether this is your intention or not, it’s generally advisable to cancel and rewrite your Will in such cases. 

Consequences of not having a Will
Failure to write a legally valid will before you die will result in your estate becoming subject to intestacy rules, so it may not go to the people or causes you want. Your estate will then be distributed according to fixed rules and will not take your personal wishes into account.

The following scenarios apply if you die without making a legally valid Will:

The first £250,000 of your estate, plus half of the remainder and your personal possessions, will go to your spouse or civil partner, while any children will receive the other half of the balance. Where no children are involved, your spouse or civil partner will inherit your whole estate, which includes all of your personal possessions.

If you are unmarried or not in a civil partnership and did not make a Will, your partner will not automatically be entitled to penny of your estate – even if you have children together or have cohabited. In such a situation, your partner would need to make a claim under the Inheritance Act 1975, which could award them some of the estate. This is also true for any dependant omitted from a Will. Your children stand to inherit your entire estate if your spouse or civil partner dies before you do, and your estate will be equally divided between your children.

Parents, siblings, nieces and nephews are in line to be your next of kin if you don’t have a partner or any children when you die.

To discuss writing or revising your Will, contact Alvin David on 020 8979 1131 to set up an appointment.

Having a Will is important for every adult but is even more so as you enter retirement and start to put your affairs in order.

With time on your hands, it is a good opportunity to make an appointment with your solicitor to make or update your Will and plan for your old age while you are in good health and can think clearly about the issues involved.

“It is natural to put off making a Will thinking that there is always time to do it later, but a sudden change in health can occur without warning. Without a valid Will, the law dictates who inherits your estate under the intestacy rules,” says Karen Starkey, a Wills specialist at KWW Solicitors.

Here, Karen explains why you should make a Will as soon as possible; and how mental capacity and undue influence are particularly important issues to consider.

Testamentary capacity
The law requires certain conditions to be satisfied when you make your Will, otherwise it is unlikely to be valid. If your Will is declared invalid, the statutory rules of intestacy apply, which means your nearest living relatives will inherit your estate – something which may not be in line with your wishes.

One of these requirements is that you have what is known as ‘testamentary capacity’ at the time you make your Will. To have testamentary capacity, you must be able to understand the nature and effect of making a Will, the extent of your estate and the impact of your proposed instructions. Also, you should not have a mental illness which influences you to make gifts you would not have made otherwise.

In the case of an elderly person, mental capacity is more likely to be an issue because of the increase in dementia, Alzheimer’s or other illnesses affecting cognitive abilities. The courts have even held that a Will made while someone was suffering from severe grief was invalid because of a lack of testamentary capacity.

If you are thinking about a Will but you are concerned about your mental health and your ability to make a Will, it is vital to take expert specialist advice as the evidence of a doctor may well be needed for your protection.

When medical evidence is necessary
If your solicitor is concerned about your testamentary capacity to make a Will, or thinks there is a risk a relative could ask the court to declare your Will invalid because you lacked testamentary capacity, they will ask a doctor to provide evidence that you have capacity to make a valid Will.

In law, this is known as the ‘golden rule’ and requires your solicitor to have your Will approved or witnessed by a doctor who must be satisfied of your capacity and understanding in making your Will if you are elderly or suffer from a serious illness. The doctor must record and report their examination and findings about your capacity.

This evidence could make all the difference between the smooth administration of your estate after your death and an expensive dispute involving allegations that you lacked capacity.

Duress and undue influence
There is absolutely no reason why you should not discuss your Will with your loved ones, in fact most older people prefer to talk things over with their family. You will want to discuss who you would like to act as your executors and you may, for instance, ask your children if there are any specific items of jewellery, furniture or artwork they would like to be left. 

However, enlisting their help and asking for their preferences is one thing but there must be no evidence of duress, or undue influence which amounts to coercion, in that it overpowers your own wishes; the court is likely to declare the Will invalid.  

The words or behaviour used may not be outright blatant duress, it could be a ‘drip drip’ feed of subtle undue influence leading you to make a gift you would not otherwise have made. In one case, a child gave her parent deliberately incorrect information to secure her inheritance. The court said this amounted to undue influence.

You should also be wary of making gifts to non-family members who you may not have known for long. Elderly people, particularly those who are lonely, are often particularly vulnerable to being befriended by individuals who have ulterior motives.  There is nothing wrong with leaving anything to people who are kind to you but if there is any evidence of undue influence such a gift could be held invalid.

Disinheriting a child
Exercise caution if you are thinking about cutting a child out of your Will. There has been a run of cases where adult children have brought legal claims for money out of their parents’ estates, even in situations where they have been estranged for many years. 

Unless there is clear evidence that your estrangement has been caused solely by their own conduct or behaviour, and you have not been supporting them financially, it is unlikely your son or daughter could make a successful claim against your estate. Traditionally, the law allows you to leave your estate to anyone you choose. However, with any rules there are exceptions, so if you have any doubts about disinheriting a child speak to our specialists. 

It is vital to have careful legal advice and guidance, and our expert solicitors can help you minimise the risk of a dispute. We work hard to ensure our elderly clients have the peace of mind they deserve.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

It can be flattering to be asked by a relative or close friend to be a trustee of their estate, but this is a role with important legal obligations and disputes can arise when beneficiaries do not agree with the actions of trustees. One such area of potential disagreement is the amount of information that is circulated to beneficiaries.

Karen Starkey, a specialist in Wills, trusts and probate at KWW Solicitors, explains that trustees have a duty to account to the beneficiaries and to provide information about the trust to them. “These are vital tools in the beneficiaries’ armoury when holding trustees to account, and this can be important if there is any suspicion that trustees are acting improperly,” says Karen.

A trust may be set up to protect money or property while it continues to benefit certain people (the beneficiaries). For example, a trust of property may be available for named adult children to live in, or a trust fund may pay for the beneficiaries’ university fees. The fund or property is managed by the trustees who must administer the trust in accordance with clear legal principles. 

Each trustee owes specific duties toward the beneficiaries, including the duty of good faith, to act in accordance with the trust deed and they have an obligation to account to the beneficiaries for their stewardship of trust assets.

Keeping beneficiaries informed
In discharging these legal responsibilities, as a trustee you have an important duty to keep the beneficiaries informed. The trustees must keep accounts and provide them to the beneficiaries if they ask for them, give them reasonable information about the investment and management of the trust fund and inform a beneficiary when they become entitled under the trust.

Information requests from beneficiaries
Conversely, the beneficiaries are entitled to request information to reassure them that the trust is being properly administered. However, the beneficiaries’ entitlement to information from the trustees is not unfettered and trustees do not have to comply with every request for details and information of the beneficiaries. They must have genuine reasons for seeking disclosure of information, such as holding the trustees to account or to protect their own beneficial interests.

In a recent case, Lewis and others v Tamplin, the beneficiaries made numerous requests to the trustees for information about the trust as they believed that distributions of trust money had been made to other beneficiaries but not to them. The trustees refused to respond on the basis that the beneficiaries had enough information. However, the court decided the beneficiaries had the right to disclosure as they wanted the information to hold the trustees to account – and that was a valid reason.

While the court said that the beneficiaries were entitled to disclosure of documents relating to advice sought by the trustees in relation to the trust itself and for the benefit of the trust and the beneficiaries, they were not entitled to see documents that were protected by legal professional privilege of the trustees in any other capacity. Nor can beneficiaries require the trustees to disclose information or documents to hold them account specifically for their management decisions.

Beneficiaries do not have the right to see everything, so how should you respond to a request from a beneficiary for additional information? You should consider, for example, whether they have valid reasons to see the information, if it is reasonable to supply the information requested and whether it is privileged so that they do not have the right to see it.

When information is not provided
The law allows beneficiaries to ask the court to uphold their rights by making the trustees accountable. This means if you refuse a request for information from beneficiaries, they may ask the court to order disclosure of the information. The court will not simply accept an argument that the beneficiaries already have enough information, there must be good reason in law why disclosure should be refused.

As a trustee, you need to consider requests for information and documents from beneficiaries carefully. If you are inclined to refuse a request it must be for a proper reason, otherwise there is a risk of a legal dispute. 

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

This quick-reference table explains the role of your solicitor at each of the various stages of obtaining probate. We hope this helps you to understand the process and how our expert lawyers can support you at every step of the way.

You need to…	Your solicitor will…
Register the death with the local register office.
Obtain the death certificate from the local register office and a few certified copies.
Locate the Will if there is one
Instruct our probate solicitor to handle the legal work. Provide proof of your identity. Provide the Will and copies of the death certificate.	Verify your identity. Explain the probate process to you depending on whether there is a Will, or, if not, how the intestacy rules apply.
	Identify the executor(s) appointed in the Will. If there is no Will, we identify the next of kin legally entitled to administer the estate.
Provide contact details of all known beneficiaries.	Identify the beneficiaries entitled under the Will or the beneficiaries entitled under the intestacy rules.
Provide: * details of properties * all bank and building society account details * share certificates * investments * premium bonds * National Savings certificates * life insurance policies * pension and annuity details * details of other assets of value, eg: antiques, paintings, jewellery and collectables Provide details of any debts and liabilities. Provide details of any lifetime gains made by the deceased within the past seven years.
	Identify whether we will apply for a grant of probate or letters of administration to deal with the estate/grant. Contact relevant establishments for a final valuation of bank accounts, shares, investments etc. Obtain valuations of property and any valuable items as at the date of death. Calculate an initial value of all assets and liabilities.
Swear a legal oath or make a statement of truth that the information provided is true and correct.	Calculate any inheritance tax due. Complete appropriate HMRC tax forms and pay inheritance tax. Send the probate application with the sworn oath or statement of truth and probate fee to the probate registry.
	Place statutory notices in the London Gazette and local papers to alert potential creditors of our intention to distribute the estate to the beneficiaries.
	We will give you two copies of the grant. Send the grant to the financial institutions and other asset holders and request full payment to the assets. Place the money into a dedicated executor’s bank account. Settle outstanding estate expenses, debts and liabilities, including any final inheritance tax due.
	Advise if varying any will save inheritance tax or otherwise benefit the beneficiaries.
	Make a bankruptcy search of the Land Charges Register against beneficiaries. If a beneficiary has been declared bankrupt, we will contact the trustee in bankruptcy about where the beneficiary’s inheritance should be paid into.
	If there are no challenges to the estate, we will distribute the net estate to the beneficiaries entitled under the Will or intestacy rules and obtain receipt. If any challenges to the Will are expected, we will advise you on the implications.
You will approve and sign off the final estate accounts.	Complete and file all paperwork