Is a last will and testament legally binding UK?

Is a last will and testament legally binding UK

 

  • A will is arguably the only reliable means of distributing an estate on death.
  • To be valid a will must meet certain criteria.
  • Only the original will usually carries any legal weight (copies do not).
  • Even where a will is valid, gifts within it may themselves fail.

I would assert that a last will and testament is the only reliable means by which a testator (one making a will) may reliably exert agency as to what is to happen to their estate on death.

Whilst other means of passing property exist e.g. death bed gifts, it would, in my view be a brave individual who relied on such an approach (in such ‘death bed’ instances a particular type of will, which gives a great deal of flexibility to those trusted by the dying, might be preferable to ‘donatio mortis causa’).

For the avoidance of doubt, only the original version of a last will and testament carries any legal weight. There exists provision in English law, for an individual to rip up a will and to so revoke it. In order to give effect to this law, if an original document (bearing wet signatures) cannot be found, this is assumed to have taken place and the will revoked, unless it can be proven otherwise.

Assuming an original will can be located, it must meet certain criteria in order to be legally valid, these include, but are not limited to:

  1. The document has been drafted correctly.
  2. The document has been executed and witnessed correctly.
  3. The document has not been lost, destroyed or mutilated in such way as to revoke it.
  4. The person making the will had mental capacity to do so at the time.
  5. The person making the will was not subject to undue influence from a third party.
  6. The person making the will was over 18 years of age.

In the absence of a valid will, intestacy law may apply, this legislation deals with the distribution of assets to family members in the event that no valid document is produced. The manner in which these are distributed is summarised in the diagram included (taken from Confidence Wills guidance document 2020).

It’s worth clarifying that even though a last will and testament may be valid, gifts set out therein, may themselves fail for a number of reasons. These include (but not limited to):

  1. A beneficiary (or spouse/civil partner thereof) has witnessed the will.
  2. The gift is to a spouse/civil partner with whom divorce or dissolution has taken place.
  3. The beneficiary has pre-deceased the testator (lapse).
  4. Property or assets gifted by the will do not form part of the testator’s estate (ademption).
  5. There are not enough assets in the estate to settle all the gifts of the will (abatement).
  6. The gift is not clearly enough described in the will (uncertainty).
  7. Unlawful killing. If a beneficiary unlawfully kills a testator, they may not benefit (unless insane!).
  8. Disclaimer, beneficiaries may simply refuse to accept a gift.

 

There are innumerable other challenges which might arise in the creation and application of a last will and testament e.g. lack of clarity over what constitutes the testator’s estate. It is critical that anyone considering making a will seeks professional advice from a regulated will writer. For the avoidance of doubt, the foregoing article refers only to wills made in England and Wales.

If you would like to learn more about any of the issues described here, visit Confidence Wills now at www.confidencewills.co.uk and book a free consultation.

Why do I need a trust if I have a will?

Why Do I Need A Trust If I Have A Will

Why do I need a trust if I have a will?

  • A will allows you to give your estate away when you die.
  • Trusts separate the legal and beneficial ownership of assets.
  • Combined, will based trusts, allow you to protect those you care for very effectively.

 

The functions of trusts and wills are fundamentally different in nature.

A will directs assets, which form part of your estate, to named beneficiaries, when you die.

Your ‘estate’ includes everything that you both legally and beneficially own. In broad terms, this means everything that is both documented as belonging to you, and which you are entitled to enjoy.

Examples of items that you might so own are: houses, money, cars etc.

Gifts in your will might include wording such as “I give any car which belongs to me at the time of my death, to my son, David.” The effect of this direction is self-evident. Items such as your car may be yours both legally (the car is in your name) and beneficially (you are free to drive the car).

In explaining the function of trusts, it is useful to look at things to which you have a relationship, but which do not form part of your estate for the purposes of a will. Such items might include a pension, or money which you hold on trust for someone else.

These items highlight the power of a trust to separate legal and beneficial ownership. In the case of your pension, it is legally owned by the pension’s trustee. You, however, are entitled to benefit from the pension. The beneficial rights sit with you.

In the case of money held, by you, on trust for someone else. The money might rest in your bank account i.e. legal ownership might reside with you, but you owe an obligation to those for whom you hold it on trust, to apply it only to their benefit. Beneficial rights sit with them.

Trusts and wills converge in ‘will based trusts’. Will based trusts are legal instruments written into wills, which trigger the creation of a trust on the death of the testator (the person making the will). These trusts, once created, are capable of receiving gifts, directed into them by your will.

They are usually used, where a testator feels them protective of the mid/long term interests of those he/she wishes to care for through their will.

The two examples below give a brief overview of how they achieve this protective effect.

Example 1. Mr and Mrs Smith are a couple in their thirties, they’ve two children and each own half of the home in which they live. They are both concerned that, should they die, their spouse will remarry and their respective interests in the house will be lost to a new partner or family. To protect against this, rather than leaving their interests in the house to one another, they leave legal ownership of the house to a trust (a ‘Property Protective Trust’). This trust allows their spouse to live in and benefit from the house whilst still alive, but ensures its passage to their children on second death.

Example 2. Mr Jones is wealthy and widowed. He wishes his only son, James, to benefit from his estate on his death, however, he is concerned that his son James’ marriage has deteriorated and, whilst no irrevocable steps have been taken towards its dissolution, Mr Jones, does not wish his hard-earned fortune lost, should rapacious divorce lawyers become involved in the future. With this in mind, Mr Jones leaves his estate to a ‘discretionary trust’, naming his son a beneficiary. This instrument places legal ownership of the estate with named trustees who can be given guidance to benefit James, whilst having an eye to his financial protection should divorce take place.

Trusts are used a great deal in wills to look after the slightly longer terms interests of those you care about. Confidence Wills are experts on will based trusts. If you’d like to learn more, please contact us now by going to www.confidencewills.co.uk and booking a free consultation.

 

Is it Best to Put a Will in a Storage Unit?

Is it Best to Put a Will in a Storage Unit?

Is it Best to Put a Will in a Storage Unit?

 

  • Only an original, properly signed will, carries legal weight, it must be protected.
  • If a will is in the possession of the person making it, and is lost, it is assumed to be revoked.
  • Storage so protects against wilful destruction and defacement of documents.

 

Only an original, signed will carries any legal weight. There is a physicality to the document to which we are unused and which seems at odds with modern technology. The risk of harm coming to this crucial, yet fragile item whose life may extend over decades, is significant. We strongly advocate the use of professional storage units as a cost-effective means of reducing risk.

The use of a storage facility protects the will against (non-exhaustively):

  1. Accidental destruction.
  2. Accidental loss.
  3. Wilful destruction.
  4. Defacement.

 

Accidental destruction of a will

A will may be revoked on destruction, by the testator. If a will is in the possession of the deceased and is lost or destroyed, it is presumed to have been ripped up with the intention of revoking it.

Notwithstanding, innumerable factors may result in a document’s accidental destruction, for example: damp, fire, moving house, insect larvae, flooding, young children or pets. Such harm may go unnoticed in the years separating creation and application.

Where a will is accidentally destroyed, it is up to those seeking to benefit to show that its destruction was the result of an accident, and that there was no intent to revoke. This is difficult and potentially impossible.

By keeping the will in a professional storage unit, the testator protects themselves from accidental destruction in three ways.

Firstly, the will is stored in fire and water proof materials, physically reducing the risk of accidental destruction. Secondly, professional storage units retain digital copies of documents and records of clients’ access thereto. Thus, they are able to demonstrate that documents were not in the possession of clients at time of destruction, supporting the case for the use of copies. Thirdly, in the unlikely event that the will cannot be enforced, such entities carry insurance (usually several million pounds), to compensate harmed parties.

 

Accidental loss of a will

Will are regularly lost and assumed revoked. They are lost in house moves, clear outs and simply as a consequence of disorder’s tendency to increase over time. Even if all documentation relating to the will’s storage, and all those present at the making of the will are lost central databases, of documents held in storage facilities, can be searched during probate to locate the document.

 

Defacement of the will

A mutilated will may be deemed revoked. Various degrees of ‘scribbling’ or ‘striking out’ have been found to revoke or not to revoke elements of the will. If a young child finds the document or even a mischievous party who stands to gain, chaos may be wrought! Conversely, well-meaning folk, seeking to organise matters may attach an associated document like a deed or letter to the will. Many are surprised to learn that even this may be catastrophic and lead to revocation. Retention away from the home vastly reduces the risk of such interference.

 

Wilful disposition of the will

On death, many may gather at the house of the deceased. It is not unheard of for parties who stand to benefit from intestacy or a previous document, to seek out a will and destroy it. A key protective function of professional storage units is their restriction of those who’ve access to documents.

The above is not exhaustive. We hold that the use of professional storage units is in the interests of all concerned.

If you’d like to discuss any of the matters raised above, please contact Confidence Wills. You can book a free consultation at www.confidencewills.co.uk.