Category: Wills – New year resolutions

LPA graphic

Trusts – What are they?

Posted by Matthew Wildeman on

A Trust is a legal arrangement where someone looks after assets (the Trustee) on behalf of one or more potential beneficiaries.

Why use a Trust?

A Trust can be a very useful way or protecting an asset for the future benefit of named individuals, the beneficiaries. For example, a Trust would have to be setup if the beneficiaries of a Will were under 18, as legally they can’t inherit until then.

Discretionary Trusts can also be created to protect “attack”. The person setting up the Trust (the Settlor) can “give away” the asset but retain some control via the Trust document. Importantly the beneficiaries of a Discretionary Trust have no “right” to the Trust assets as it’s at the discretion of the Trustees how and when the assets are distributed. For example, if a potential beneficiary were to get divorced it could not form part of the settlement. The same principle applies for venerable beneficiaries e.g. disabled or reckless individuals.

Could a Trust be useful for you?

Trusts are complex and have potential tax implications, if a Trust is right for you depends on your personal circumstances. You should seek professional advice in all instances.

Trusts – What are they?

TWT 2

Getting your Will witnessed during lockdown?

Posted by Matthew Wildeman on

If you have a Will or Codicil (amendment to an existing Will) that need to be witnessed, called Attestation, then isn’t straight forward during these troubled times.

Under the requirements of section 9 of the Wills Act 1837 the person making the Will, Testator, must sign or acknowledge their signature in the presence of at least two witnesses, together at the same time. The witnesses must be 18+ of sound mind and can’t be a beneficiary of the Will or married to a beneficiary of the Will. Therefore, immediate family members are unlikely to be able to witness the Will. Without the Will being witnessed and dated correctly it is not a legal document.

So how do you get your Will witnessed then?

The answer is carefully!

There is a precedent in a very old case law, Casson v Dade (1781). In this case it was established that a Will was valid where the witnessing had taken place through a window, so while the testator and their witnesses were not actually in the same room, they did see them sign the Will. How does this work?

The “Window Method”:

  • Pass the Will through the letter box for the Testator (person making the Will) to sign in front of the window while the two witnesses watch from outside
  • Then passing the Will back through the letterbox for the two witnesses to sign while the testator watches them sign through the window

This could be difficult to arrange as you will need to arrange two independent witnesses, friends or neighbours are fine, to witness you signing through a window or patio door. It is understandable that people might be reluctant to do this during social distancing rules.

The COVID19 crisis has highlighted the antiquated rules surrounding signing of Wills and other legal documents and there is talk of changes to the law to allow video witnessing or possibly online options. However, it is vital that the correct safeguards are still in place to protect frauds, it is unlikely any changes will happen for quite a while yet.

In the meantime, the only way is to either wait until the crisis is over or use the “Window Method”.

If you want any help or advice about Wills or Powers of Attorney, then please get in touch for a free consultation.

Will witnessed during lockdown?

Share
TWT 2 big

Serious implications for your Will?

Posted by Matthew Wildeman on

In 2002 a woman made a Will and made it very clear she didn’t want her estranged daughter to inherit anything. After her death in 2004 and following numerous court cases, this was recently overturned by the Court of Appeal, awarding the daughter a third of her late mother’s estate. This seems to fly in the face of the principle of “Testamentary Freedom” in British law and has major implications for your Will.

If you now make a Will that doesn’t make “reasonable” provisions for your children it may be overturned by the courts.

See recent news story for more details: http://www.bbc.co.uk/news/uk-england-beds-bucks-herts-33684937

Estate Planners like myself have been following this case for a number of years and I have advised all my clients to make at least a token gift to all their children, even if they didn’t really want to. I’ve also advised to back this up with a “Letter of Wishes” explaining the reasoning. However now even that may not be enough to ensure your wishes are carried out.

There are no easy answers to this problem, which is why it is so important to seek qualified professional advice. If you wish to arrange a free consultation please get on contact with me now:

info@mwestateplanning-co-uk.stackstaging.com

(01202) 978 720

Serious implications for your Will?