Common Questions

Q: What are your Office Hours?

A: 8am until 2pm Monday to Friday.

Q: Do you do home visits?

A: Yes however with the problems in recent times of virus infections we now prefer to do our work the modern way, it keeps you safer plus it keeps our prices lower, using telephone, email, and Royal Mail etc, however we will consider home visits in certain circumstances.

Q: Why do you take a deposit?

A: Before starting any instruction, we always require a small deposit, this is your commitment so that I can start your work, you will receive an official invoice and the balance of our fee becomes due when you receive the original documents.  

Q: Why is the answer machine always on?

A: As a small business we do not employ reception staff and when we are doing legal work it is better not to get interrupted with the telephone ringing as a break in concentration can cause us to make errors, so please always leave a message.

Q: How long does it take to register Lasting Powers of Attorney?

A: Currently it is taking the ‘Office of the Public Guardian’ about 20 weeks to register the Lasting Power of Attorney documents. They will be returned to you directly Recorded Delivery form the ‘Office of the Public Guardian’ and they will be in different envelopes, and they may not all arrive on the same day or even same week or month, so do not worry if one is missing, it will turn up.

Important: When I send your Lasting Power of Attorney documents for registration each document is held together by ‘treasury tags’ (Little strings). When ‘those same’ documents are retuned to you ‘registered’ by the ‘Office of the Public Guardian’ these tags will have been removed and they send back your Lasting Power of Attorney documents as loose sheets! The sheets you must keep are the original sheets with the hole in the top left corner where the tag was. The ‘Office of the Public Guardian can be contacted on 0300 456 0300.

Q: Why do I need Probate as my mum left a Will?

A: This seems to be one of the biggest misconceptions that if there is a valid Will in place there is no need for an application for the Grant of Probate to be made. Most estates with or without a Will need to go through Probate but trust me it is far easier and cheaper to do this with a valid Will, the Grant of Probate is the legal document that will allow your Executors a legal right to gather in your assets and then distribute them according to your Will. Most organisations such as banks, building societies, life assurance companies need to ensure they are paying over a deceased person’s money to the correct person and the Grant of Probate is the proof. The Executors are named on the Grant and the organisations pay them accordingly to then pass over to the beneficiaries. Note: If someone owns a property then a Grant of Probate will be required.

Q: What happens where there is no Will?

A: The basic rules are the same but the people who will administer the estate are known as administrators (instead of executors).

Q: Can an executor be a beneficiary in a Will?

A: Yes often the main beneficiary is one of the executors.

Q: Can children under 18 inherit?

A: Children cannot inherit until they reach the age of 18 below this age, however you can specify that they do not receive the capital sum until a later age.

Q: I’m divorced what will happen with my existing Will?

A: Getting divorced does not cancel a Will, but a gift to a divorced spouse lapses unless a contrary intention appears in the Will.

Q: Can I make my own Will?

A: Yes, you can. But there are significant risks in doing so which you will not be around to sort out. It could mean substantial legal fees to put things right quite apart from the upset and confusion it could cause those you leave behind. You should consider, a Will that is not clear under the law is open to challenge and your wishes may be overruled, a Will not made under the correct procedures can be rendered invalid, when making your own Will you may overlook some possibilities and unforeseen changes in circumstances.

Q: Do I need to nominate Guardians in my Will?

A: No but a Will can be a convenient place to name a guardian. Without nominated Guardians, the courts will decide who will look after your children.

Q: Do married couples need two Wills?

A: Yes, both of you need to make a Will, please note getting married or remarried cancels a previous Will unless that Will expressly states otherwise.

Q: What are Protective Property Trust Wills?

A: Pairs of ‘Protective Property Trust Wills’ offer the most common form of protection against losing assets to pay for possible future ‘Care Home Fees’ Quite simply instead of a spouse leaving their home to each other on the 1st death the first person to die’s share of the property goes into a ‘Property Trust’ the ultimate beneficiaries are normally the children this protects the dead persons 50% of the home. The surviving spouse can remain living in the property or move in the future if required.

Q: What is a Right of Occupation Will?

A: For example, if you own your home outright and have a partner or you have remarried, if you die you may wish to make sure your children ultimately benefit from the sale of your home but also make sure your partner was not left without a home. The Will could be worded in such a way to end the trust if your partner married or cohabited.

Q: What are Discretionary Trust Wills?

A: Discretionary Trust Will is where the beneficiaries do not have a fixed entitlement or interest in the trust funds. The trustees have the discretion to determine which of the beneficiaries are to receive the capital and income of the trust and how much each beneficiary is to receive. The trustees can only distribute to beneficiaries within a nominated class as set out in the terms of the Will. Discretionary Wills are useful to protect vulnerable beneficiaries who cannot manage money perhaps because of disability or addiction or they are spendthrifts and have been declared bankrupt.

Q: What are Mutual Wills?

A: Mutual Wills are a way for couples to ensure how assets are dealt with after they die. The Wills form an agreement or contract between the couple and seek to bind each other when one of them dies, so the survivor cannot change their Will after their spouse’s death. Mutual Wills are generally enforceable in Court. The wording used at the beginning of both Wills would look like this. “My wife/husband and I have agreed today to make similar Wills that will not be revoked or altered unless we both agree to do so during our lifetime”

Q: Does getting married invalidate my Will?

A: Yes when you marry any existing Will is automatically cancelled. However, you can make a Will in contemplation of marriage and if the Will states that it is made in contemplation of marriage and the marriage is to a named person then if you subsequently marry that person the Will won’t be invalidated by the marriage.

The wording used for a Will in contemplation of Marriage at the beginning of both Wills would look like this.

“At the time of making this Will I expect to be married to my partner John Smith and intend that this my Will shall not be revoked by my marriage to John Smith or if I die without having been married to John Smith the following provisions of this my Will shall nevertheless take effect without alteration”

This wording would save a couple the expense of redoing their Wills upon getting married.

Q: What is a Deed of Variation?

A: Deeds of variation sometimes known as an instrument of variation are a document written and agreed by all the beneficiaries of a Will and signed by all beneficiaries that are giving up any inheritance and it legally allows them change how the estate is distributed. This may be done for tax planning or simply because you want to send some of the inheritance to someone who wasn’t included without contesting the Will, or simply change who gets what or how much, deeds of variation can only be done within two years after the death.

Q: What is contentious Probate?

A: Contentious Probate is a dispute relating to the deceased persons Will.
 
Q: Why is my home not registered at the Land Registry?

A: Since 1998 all properties that are built or older ones that are sold or mortgaged are  automatically registered electronically at H M Land Registry, this means that your ‘deeds’ are scanned onto the Land Registry’s system so that if you ever lost your original deeds it’s not a problem. If you purchased your home before 1998 there is a good chance your home may not be registered, if this is the case your only proof of ownership are the ‘Deeds’. It is not a legal obligation to register the property at the Land Registry but it is a good idea because it gives you better proof of ownership.

Q: Will my children have to pay Inheritance Tax?

A: If you are a single or divorced homeowner and you are leaving your estate direct to children or grandchildren you now have a £500,000 allowance before inheritance tax is paid at the rate of 40% on everything above £500,000.

Note: Married couples/widowers who are leaving their estate direct to children or grandchildren have a £1,000,000 allowance before their estate is taxed at 40% on everything above £1,000,000.

Note: For non-homeowners the allowance is £325,000 per person or £650,000 for married couples/widowers.

Q: Can I have a Woodland burial?

A: Yes please contact www.muchwoodburials.co.uk they have a natural burial ground just north of Huntingdon where your body or ashes can be buried or just your ashes scattered. You can also have your pets’ ashes interned with you as it is a non-religious burial ground.

Q: What are the main technical reasons for Challenging a Will?

A: Lack of testamentary capacity.

For a person to make a valid Will they must: Be able to understand that they are making a Will, and the effect of making that Will. Know the nature and value of their estate. Understand the consequences of excluding/including certain people in their Will. Not be suffering from a disorder of the mind that might influence their views. The fact that a testator is eccentric or was experiencing certain delusions does not necessarily mean there is a lack of testamentary capacity. (Banks v Goodfellow (1870).

A: Lack of valid execution.

The will must be in writing and signed by the testator (the person making the Will) or signed by someone in their presence under their direction. It must appear the testator intended by their signature to give effect to the Will. The testator’s signature must be made or acknowledged in the presence of a minimum of two witnesses who are present at the same time. There is a legal presumption that a Will has been validly executed, unless evidence can be provided to show the contrary.

A: Lack of knowledge and approval.

For the Will to be valid, the person making the Will must have knowledge of, and approve, its contents. You can challenge a Will based on lack of knowledge even if the Will appears to be executed properly, and even if you know the testator was of sound mind.

A: Fraud/forged Wills.

The Will can be contested if you believe it has been forged or some sort of fraud has taken place. This might be the forging of a signature, for example. If someone led the testator to believe that certain facts were true, and this influenced the contents of their Will.

A: Undue influence.

You can challenge a Will if someone unduly influenced, coerced or put under duress the person who was making the Will.

A: Rectification and construction.

Sometimes a Will is drafted that does not properly carry out the testator’s intentions. This could be either because of an administrative error or because the Will writer did not understand the testator’s instructions.

Q: What other reasons are there for Challenging a Will?

A: I've been left out of a Will.

An increasing number of grown-up children are finding that they have been left out of their parents’ Wills. With people living longer than ever before, some parents are taking the view that with their adult children being financially stable, their money should instead go to grandchildren, friends or charity. However, the number of challenges to Wills is also increasing. If you did not receive a share of someone’s estate and you believe that you should have done, or you have good reason to believe that the share you received was smaller than it ought to have been (perhaps because they supported you financially during their lifetime). You may be able to claim under the Inheritance (Provision for Family and Dependents) Act 1975 for ‘reasonable provision’.

A: I was promised a gift.

If the Deceased promised you something and you relied on this, but they then did not make the appropriate provision in their Will, you may be able to bring a claim. A good example of a promissory estoppel claim would be if the Deceased promised you: “I will look after you financially if you give up your job to take care of me.” As a result of the promise, you quit your job to be the Deceased’s full-time carer up until their death. Your claim against the Deceased’s estate in this instance would be for money or property to put you in a position that you would have been in had the promise been fulfilled. Note that the Court’s approach to reimbursing you would be proportionate so in this example, it is likely the Court would seek to reimburse you financially as if you had kept your job.

A: I'm owed money.

If the Deceased owed you money you may be able to make a claim against the estate.

A: They left me a gift on their deathbed.

If a dying person gifts something to you close to their death, this may override their Will. There are conditions for the gift to be valid. If a dying person gifts something to you close to their death, this may override their Will. The gift must be made with the belief that death is impending typically this means a few days. This belief must exist for a reason (for example, because they are suffering from a serious illness or about to undergo a risky operation). Deathbed gifts must be conditional on death.

Q: What are precedents in law?

A: These are 2 Will writing precedents in law that some of you may find of interest.

Banks v Goodfellow (1870)

The common law test for testamentary capacity has been long establish, being set out in the case of Banks v Goodfellow as follows: “It is essential to the exercise of such a power that a testator [a] shall understand the nature of the act and its effects; [b] shall understand the extent of the property of which he is disposing; [c] shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, [d] that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his Will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

Larke v Nugus (1979)

Cases involving disputed wills very often feature a Larke v Nugus Statement. But what is a Larke v Nugus statement? A Larke v Nugus statement is prepared by the solicitor who originally prepared the disputed Will or witnessed its execution. These statements are frequently requested by the Claimant’s solicitor as evidence against the validity of a Will on the grounds of lack of testamentary capacity, undue influence, want of knowledge or approval or forgery. The name, Larke v Nugus, originates from a legal case that determined the law on requests for information regarding the circumstances surrounding the instruction and execution of a Will [Larke v Nugus [2000] WTLR 1033].

The starting position in relation to disclosure of information regarding a deceased's will is that the information should only be made available to the personal representatives of the estate (or to others with their consent) prior to obtaining the Grant of Administration. However, this does not apply where a request for information is made to the Solicitor who prepared and/or witnessed the execution of the Will and there is a dispute in relation to that Will. In these circumstances the Law Society has recommended, since 1959, that the Solicitor should make a statement outlining the circumstances surrounding the instruction and execution of the Will to any party to probate proceedings or someone who has a reasonable claim against the Will. In 2000 the case of Larke v Nugus endorsed this long-standing recommendation, which means that a request for information now carries judicial weight.