Gifts to children in Wills

A Will takes effect on death and can therefore be revoked at any time while the person making the Will is still alive.

As a result of this the general rule is that if a beneficiary dies before a testator any gift under the Will lapses [fails]. Where the gift is a simple legacy and the person to receive it has died before the testator any gift to him/her lapses.

Where the gift is a simple legacy and the legatee has died before the testator the subject matter of the legacy will fall into residue and increase the value of the residuary estate.

There are important exceptions to this so called ‘doctrine of lapse’ the most important of which is section 33[1] of the Wills Act 1837[the Wills Act] which provides a saving for the issue of the testator.

The statutory saving in the Wills Act has wide reaching implications .Section 33[1] provides that :

A Where a Will contains a gift to a child or remoter descendant of the descendant of the testator and

B the intended beneficiary dies  before the testator leaving  issue and

C issue of the intended beneficiary are living at the testator’s death;

Then unless a contrary intention appears in the Will the gift shall take  effect  as a gift to the issue[which means children or grandchildren and their descendants down through the generations] living at the testator’s death.

For example Tom the testator leaves his estate to his 2 sons in equal shares.

His eldest son Peter dies before Tom leaving 2 children.

Section 33[1] Wills Act operates to ensure that  the 2 grandchildren of Tom take Peter’s  half in equal shares.

Although it’s not possible to exclude the doctrine of lapse under a Will the testator may of course provide for an alternative in the Will so that another beneficiary takes the gift instead. This could be done either by an accrue to the other shares or a gift to another  person.

The effect of an accruer is that the failed gift accrues or is added to another gift that already exists under the Will. An accruer in the widest sense may be implicit in the wording of the gift. Where ,for example, a testator makes a gift to two or more people  and it is clear that the failed share of any who predecease the testator will  increase the share[s] of those who survive there will be an implicit accruer.  

One in five faulty Wills could lead to big inheritance tax bills

One in five Wills contain basic errors according to a recent report from the Legal Services Board which called for Will writing to be regulated to improve standards.

Writing a Will is the first steps to make sure you choose who benefits from your lifetime’s work and to keep inheritance tax [IHT]  to a minimum so it is vital to get it right. By the time you realise there has been a mistake it may be too late to do anything about it.

Although lawyers welcome disputed Wills with open arms because of the fees for sorting things out disputed and faulty Wills are bad news for the families concerned as the lawyer’s time is usually a massive drain on the value of the estate.

Lack of clarity about the testator’s intentions  due to the lack of knowledge of the person taking the instructions can prove difficult to sort out posthumously but the Legal Services Board claims many Will writers are simply ‘not listening’ to their clients.

It’s report states:

‘We found consistent patterns of sloppiness simple errors and poor communication. This often resulted in an unacceptable service for cus consumers were subjected to unfair sales practices’.

Worse still the LSB said it was aware of some ‘examples of fraud and deception’. Its survey of 100 people who wanted a Will found that 20% came back with ‘basic errors’ in their Wills. A handful of the Wills were so bad they ‘could not be executed’.

Currently anyone can help to write a Will. However, under the plans Will writing will become a ‘reserved activity’ for the first time. This will mean that anyone writing a Will have to be registered with one of eight professional bodies.

The Citizens Advice Bureau has warned that increasing numbers of people have been conned by bogus Will writers, some advertising Wills for around £25 in local papers or offering Will writing services door to door. Low cost Wills could prove an expensive mistake given the sums of money  involved in many bequests and most litigation.

But the fundamental problem remains that only a minority of people ever make a Will and most people die intestate. Extending regulation to cover Will writing will do nothing about that-unless of course the authorities decide to make Will writing compulsory like registering a property title at the land registry.

This article just goes to show  the importance in having your Will prepared by a company who cares about its customers and with the ability to match the wishes of a testator with the terms of a Will while at the same time ensuring the Will is tax efficient and free from future challenge.

Consumer Care has a legal team managed by a specialist in the area of Wills estate administration and tax planning the former partner in charge of the Wills Trusts Tax and estates department  of a top ten national solicitors firm where on average on a yearly basis the department produced 35000 Wills .Added to the fact he has just completed 40 years  in the legal profession in this area of the law We can honestly say there is no company better placed to prepare your Will and give you all related advice than Consumer Care .

Why a Lasting Power of Attorney is not just for the elderly

Mental and physical incapacity can hit at any time .plan ahead now to ease the potential burden on your family.

There are some 800000 people in the UK suffering from dementia-a figure that is expected to pass the one million mark by 2015 [ source Daily Mail May 2012. ].

A person living with dementia ,alzheimers or any other condition which might affect mental capacity could find the handling of their finances potentially difficult.It’s for this reason that charities across the UK are strongly recommending that we all have Lasting Powers of Attorney  in place and it’s not just for the elderly .Any of us could become incapacitated through accident or illness at any time.

With a Property & Financial LPA you can nominate people you trust to take care of your finances for you at any time in your life.You may decide you don’t want to deal with your banking pension or paying your bills any longer or you may become incapable of taking care of things yourself.

Health and Welfare LPAS allow those you appoint to make decisions about your care and well being should the time come when you are unable to make these decisions yourself.

The good news is that Consumer Care can set up you Will and Lasting Powers of Attorney at a very competitive price and without the need for you to leave your home .

Consumer Care Limited

Consumer  Care has been set up to make the purchase of legal and financial services  a simple  and friendly experience for the individual.

We prepare Wills ,Lasting Powers of Attorney  and Asset Protection Trusts at very competitive prices  and we will be branching out in the future to offer other services to help protect your assets .

The way we deliver these services to you is by telephone  or you can use our online service if you prefer.

In either case we can complete documents for  you  and send them to you for signature which means you do not have to leave the comfort of your own home.

If you would like to go online we have a comprehensive website which will answer all your questions

The information is set out in an easy to understand way which will help you to make informed decisions on your future.

Alternatively you are welcome to ring us on the number below to discuss  anything relating to Wills,Lasting Powers of Attorney ,Asset Protection Trusts estate administration and tax planning.

Consumer Care, unlike other companies offering these kind of services is able to offer  them nationally.

Wrong Will signed by Testators

In a recent case Marley v Rawlings the facts were Mr and Mrs Rawlings each left the other their entire estate but if the spouse failed to survive the whole estate was left to Terry Marley who was treated as their adopted  son.

The Rawlings had 2 natural children but were not close to them and their intention was to benefit Mr  Terry Marley  alone on the death of the survivor.

Their house was vested in their 3 names as beneficial joint tenants and the rest od the estate came to about £70000 net.

The solicitor who had prepared the Wills visited Mr and Mrs Rawlings at their home with his secretary for the purpose of signing the two Wills.

By mistake Mr Rawlings executed Mrs Rawlings Will and vice versa.Both signatures were witnessed  by the secretary and the solicitor and no-one noticed the error.The mistake was not picked up on the death of Mrs Rawlings in January 2003.Presumably all the assets were jointly owned so that it was unnecessary to obtain a Grant of Probate.

It did not come to light until Mr Rawlings died in 2006.

If the Will was invalid the estate would pass on intestacy to the 2 natural sons of Mr Rawlings.The report makes it clear that Mr Marley will hold the solicitor responsible for the error.

The Court held that the Will could not be omitted to Probate because the requirements of the Wills Act  section 9 had not been met.This section provides that no Will shall be valid unless it appears that that  the testator intended by his signature to give effect to the Will.

In the Judge’s opinion Mr Rawlings did not intend his signature to give effect to the Will he signed.

The Will was therefore invalid.

In case the Judge was wrong  on that point she went on to consider whether the Court had the power to rectify the will under the Administration of Justice act 1982 section 20 and decided that it did not.

Section 20 allows a Court to rectify a Will only if  it is satisfied that the Will fails to carry out the testator’s intentions,in consequence of a clerical error, or a failure to understand his instructions. The meaning of clerical error is wider than mere errors in transcription. In the present case there was no error of drafting whether by inclusion or by omission or by miscasting of words.

The Wills were both correctly expressed ,the error was simply that  the wrong Will was signed. It was as if the solicitor had pulled a Will prepared for a totally unconnected testator out of his briefcase and that one had been signed by mistake.

Rectification was not available.

The case is a reminder of the care that a solicitor needs to take if overseeing execution. Where a solicitor does not oversee execution if the Will is to be returned to the firm for safe keeping there is a duty to check that, on its face, and on the facts then known to them its execution was ostensibly valid.

Will writing regulation

Major changes are happening in the area of Will writing.

Wills have traditionally been written by Solicitors who have undergone many years of training and practical experience. They  are regulated strictly by the  Solicitors Regulation Authority [ SRA].

However as Will writing is not a reserved activity other competitors with little experience of Will writing have entered the Will and Probate market.

There are numerous Will writing companies around the country who are either not regulated or self regulated but none are regulated as rigorously as solicitors.

However, the Legal Services Board are now reviewing this area including dealing with Probate and it is clear that in future all Will writing will be properly regulated and more than likely by the SRA to bring firms up to a proper standard of preparation and delivery of Wills and also dealing with Probate.

This will inevitably see the demise of the many Will writing companies who will be unable to acquire the appropriate validation through lack of training in preparing Wills and making applications for Probate.

The LSB will also be considering the regulation of provision of Lasting Powers of Attorney and  the increase in companies who are selling Asset Protection Trusts  at inflated prices without the appropriate back up service when these are challenged .

Again like Will writing and probate these are likely to be brought within the regulatory requirement of the SRA .

Consumer Care is a company specifically set up to look after the consumer’s interests  and to ensure the services  we deliver are in accordance with the proper regulatory requirements .

We have an in house solicitor who is regulated by the SRA unlike most other companies to ensure we are compliant on all matters we deal with for our customers.

Will and Probate Statistics

Based on a survey of 2000 adults:-

51% do not have a Will .

Those who do have a Will:-

35-44     39%

45-54     62%

55-64      67%

65+          77%

The older you are the more likely you are to have a Will.

From people surveyed :-

58% reviewed their Will within the last 3 years

30% reviewed their Will  between 3-10 years previously

61% of widowed ,separated or divorced have a Will

54% of married people have a Will.

75% who own their own house outright have a Will

Estate Planning and Inheritance Tax

54% are unaware of the ability to transfer the IHT free band between husband and wife and between civil partners

66% do not have an ongoing advice relationship with a professional adviser.

Based on 2750 consumers in England and Wales

36% had a will which suggested 27.5 million adults do not have a Will

70% of those aged 65+ had a Will .2 million of people in this category have not yet made a Will.

68% of widows were more likely to have a Will

45% of either married or divorced people had a Will.

Reason for not having a Will

42% haven’t got round to it.

30% had never thought about it of which almost 20% were aged 65+

15% felt that they were too young to think about it but intended to do so in the future including 37%  of 16-24 year olds

10% said they had not made a Will as they didn’t want to think about dying.

12% of people who had experienced illness changes in personal relationships or having children prompted them to have a Will

These are surprising statistics bearing in mind the crucial final instructions which should be contained in a Will as far as your family is concerned.

Please contact Consumer Care to discuss why you should make a Will