PLEASE READ THESE IMPORTANT NOTES WHICH ARE EQUALLY APPLICABLE TO A CODICIL
Commonly used terms
- A person making a Will is called the Testator or Testatrix
- A person benefiting under a Will is called a Beneficiary
- A document that makes changes to an existing Will is called a Codicil
- In order to be valid, your new Will must be executed in a particular way. It must not be witnessed by your spouse or civil partner or by a beneficiary or a spouse or civil partner of a beneficiary. We recommend that it is executed at our offices, in the presence of two independent witnesses who we will provide. Please note that a gift to a beneficiary will be void if that person acts as a witness to your Will.
- We offer to keep your executed Will in our safe depository. Two certified copies will be forwarded to you with our receipted account.
- If you have ask us to send you the new Will as you wish to deal with its execution, we will send you written instructions about signing it. If you have any difficulty understanding those instructions, please let us know. If you wish this firm to hold your Will, then please return it to us after you have executed it either by personal or recorded delivery. If we do not receive the Will back within 28 days of sending it to you, we will assume that you have decided not to sign it or have signed it and that you have retained it. You should make arrangements to ensure that your final Will can be found. Please note that if you do not sign your Will at our office we cannot offer any evidence to support the valid execution of the will.
- We will ask you to satisfy us that the provisions proposed in any new Will are made of your own free will and not as a result of undue influence by any other person. The person claiming the benefit of a gift may have to prove that no undue influence was brought to bear if they are in a position of trust. We therefore prefer to take instructions from a client in private, and not in the presence of the person who is or may be a beneficiary.
- We will not act on the instructions of anyone else regarding a person’s new Will except in special circumstances. In all cases, we insist on some form of personal contact. If this is not possible because of geographic distance, we may refer you to another solicitor local to your address to handle the matter. In the case of ill health, or disability we will attend at home, nursing home or hospital unless we are told that this is not medically appropriate. Additional charges may be incurred for additional time out of the office and travelling costs.
- You must have the necessary mental capacity to make a Will or it can be set aside. We will not take any steps to obtain confirmation that you have the necessary mental capacity unless you ask us to do so. There will be an additional fee for this service.
- If you have any reason to believe that your health is or will be impaired or compromised, please make sure we are aware of this and any timescales relevant to your condition or medical treatment. Where appropriate, and in order to avoid the risk of a challenge to your Will on the basis of lack of capacity, we will ask for your authority to contact your doctor in order to obtain confirmation of your capacity to make a Will and for the doctor to witness your Will. There will be an additional fee for this service and a doctor’s fee.
- Where you have chosen our Level One Service, we will ask you to let us have a cheque for our fixed fee before we send you the draft Will for your approval. If the information you give us suggests that we cannot deal with your wishes as a Level One service, we will tell you and ask for your further instructions.
- If we prepare and send you a draft Will, but do not receive any response within four weeks, we will assume that you do not wish to proceed. We will close our file and will not remind you that you have not responded.
- We are sometimes asked to make a ‘temporary’ Will – typically because the testator is about to go abroad or into hospital. Please note that a Will once properly executed is permanent and can only be revoked by physical destruction by the testator, (e.g. tearing/burning) or by the execution of a new will or by marriage or civil partnership. (See below)
- Foreign Assets – if you have assets outside England and Wales, please be aware that your Will may not be effective to pass that property. We do not offer advice on foreign assets as part of our Level One Will drafting service. If you require advice in relation to a property abroad we will let you have an estimate of fees or help direct you to alternative specialist advice.
- Tax – we do not offer advice on Inheritance Tax as part of our Level One Will drafting service. If you require advice as to the Inheritance Tax implications of your Will, please inform us and we can provide such advice for an additional fee, which we will agree with you.
- The Inheritance (Provision for Family and Dependants) Act, 1975 may enable certain persons to seek additional provision out of your estate after your death. If an application is made under this Act, it is likely to involve your estate in expense and may result in a variation of the gifts made in your Will. We rely upon the information which you provide to us for the purpose of preparing your Will to indicate whether there could be a potential claim arising on your death.
- No provisions you make can prevent any persons bringing any claim they wish to against your estate. No matter how unmeritorious that claim may be even if it is defeated there will be b a cost your estate in delay and legal fees and expenses.
JOINTLY OWNED PROPERTY
Assets such as Goods and Property may commonly be held in more than one name or ownership.
If a dispute should arise, the Courts as a guide to resolving the dispute will look to see what the parties agreed along with other relevant circumstances at the time when the property was acquired
There may be a clear agreement expressed in writing as to the ownership share of each person. Otherwise the intentions of the parties to the original purchase may be relevant. In some cases the financial contributions of owners to the purchase or later expenditure may be relevant. By itself this may not provide clear evidence as to the proportions of the ownership of each person and their share of the value of the property or of any income arising from it.
It is important that you reach agreement with co-owners as to how the property is held so that your executors know the share and value that forms part of your estate.
There are two types of ownership and this note gives general guidance only
Method 1 – Beneficial Joint Tenants
No owner on their own has a defined share of the property; everyone named on the title owns it jointly and collectively. This means that on the death of any owner, the ownership of the whole property passes to the survivor(s) automatically. This will happen despite any provision to the contrary the deceased owner has included in a Will.
This is a typical arrangement for married couples/civil partners or partners in a permanent relationship, who want the property to pass automatically to the survivor. However for estate planning and tax reasons you may decide that tenancy in common’ (see below) arrangements suit your circumstances better.
The property does not form part of your estate and so you cannot transfer your “share” of the ownership separately from the other joint owner(s). If you try to do so, in some circumstances you might convert the joint ownership into a ‘tenancy in common’.
If you intend to convert the ownership to a tenancy in common, we can help you to do this. It involves giving written notice to any other joint owner(s) and is called “severance”.
Method 2 – Tenants in Common
Each owner has a specific share in the ownership and any income from the asset. The share of each owner can be equal or unequal. The shares are often stated as a percentage or as a proportion of the whole.
Each person’s share should be agreed and recorded. This may be in the document recording Ownership. A Deed of gift, or conveyance land or Lease, may say that owners hold “as tenants in common in equal shares” or “as to one third to X and two thirds to Y”, or shares can be set out in a separate trust deed.
If asked (and sometimes automatically) the Land Registry can place a note on the property register of the title called a Restriction. In that case neither a single owner nor a sole survivor alone can deal with the property as the land registry regard the property as owned in equal shares as tenants in common.
Where tenancy in common is intended we recommend that you complete a Declaration setting out the shares in which you own the property and any sharing of income.
Because a tenant in common owns a defined share of the property, it forms part of the Estate of each owner and will pass to whoever the deceased chooses. It will NOT pass automatically to the survivor. For estate and tax planning purposes this method offers flexibility as to ownership of assets
Where owners are not married (or registered civil partners) it is important for each owner to make a Will that deals effectively with what is to happen to their share of the property after their death.
If you do not make a Will, the rules of intestacy dictate who will inherit your interest in the property. It is important for you to be aware that, at least for the present, the intestacy rules take no account of unmarried relationships (other than registered civil partnerships).
Without a Will, there may be unintended and irreversible consequences for the surviving owner, e.g. the deceased owner’s share will pass to his/her family and not to the surviving partner.