Please comment on this will?

In message , Foreign Student writes

I do hope he has nice handwriting; for that much, I believe that you deserve calligraphy on vellum.

Yet that isn't what the will states - under the terms of the will, one named sister would get twice as much as the other.

One gets one third of your estate, whilst the other gets two thirds. How your lawyer can believe those are "equal shares" must surely puzzle anyone.

What would happen to your estate if neither your parents, nor sisters, nor children of your sisters, nor even half-siblings survive you?

...

It looks pretty standard "boilerplate" stuff. I don't think there's anything actually wrong with it, except the price. I hardly think it's worth paying £400 for something this simple. I'd have thought £80 would be nearer the mark from a real solicitor. Or you could have gotten something adequate from a standard will pack from any legal stationer, or even in some supermarkets, for less than £20.

Did you copy this down wrong? It seems to me "three" should read "two".

or alternatively he did not explain himself properly to the solicitor who drew up the will. Or the solicitor failed to implement those instructions.

I was testing you all to see if your eyes were on the ball :)

My mistake, it should have been two thirds to one sister and another third to another, as per my parents wishes.

I did ask the solicitor lots of legal questions, which took up a lot of her time. She was going to increase the charge of £400 incl. VAT to £575 + VAT for me asking so many questions and amending it twice, but then she capitulated and stuck at the original price, saying it was at a "considerable discount".

I suppose it is too late for me to back down now given that other people said another solicitor could do it for £80? I haven't signed anything (like the Terms & Conditions of business she asked me twice to sign) but I would feel bad about backing out now. I would also feel bad, i.e. totally ripped off, about continuing.

My parents will marry me off in a few years time, I expect, causing my will to become void. I can then worry about other eventualities then.

Your will won't become void simply because you marry, unless of course you're in the wrong part of the UK.

By "wrong part" you mean England and Wales I guess? AFAIK a will is automatically rendered invalid by marriage unless it contains specific text showing it is made in contemplation of a particular marriage. Not sure about scotland.

Robert

Check up on the inheritence tax implications.

Robert

Did she give you a copy of the Terms and Conditions, and did they include something like "Your continuing instructions will amount to acceptance of these Terms and Conditions of Business"? If so, do you feel lucky enough to walk away and leave the solicitor to pursue you for the money - something she may be rather good at?

Reading between the lines, the parents are likely to be living and domiciled overseas, and so their estatee will be taxed according to foreign rules, so there ought to be no UK IHT implications.

That's not to say the foreign rules might not be similar to ours.

Naturally.

It's different in Scotland, where unlike in E&W there is no presumption in law that one spouse will become totally dependant for support on the other. Thus a marriage does not automatically revoke a will, much as there is no presumption that any assets owned by the spouses prior to marriage automatically become joint property upon marriage.

However, it seems that in Scotland the law presumes that (initially at least) a child will be totally dependent on the support of its parents. Therefore if one's will makes no specific provision for one's child or children, the will is automatically revoked upon the birth of any child not mentioned.

Typically someone who doesn't have any children yet and has no specific plans to have one would not think to mention them in their will, but it is presumably possible to make reference to "any children I may have" even when there aren't any at the time of making the will. That way, if and when any do arrive, the will will remain valid.

With all this DNA stuff these days, you've got to keep track of any wild oats you may have sown, because if some gold-digger of a tart comes along after you die and claims you're the father of her kid, and the tests prove she's right, your carefully and expensively drafted will, distributing your fortune worth many millions could simply be thrown out at a stroke and replaced by default intestacy rules. :-( I suppose the fix is to make a new will often enough so that your will is always younger than any illegitimate child you could possibly have fathered.

It's worth remembering that both in Scotland and in E&W, a will is not auto-revoked by divorce, and therefore it's important to remember to change one's will to cut out the estranged spouse.

Ronald Raygun posted

There isn't such a presumption in E&W either, at least while a marriage is continuing. It is only when the marriage ends in divorce that the individual partners' assets are miraculously transformed into "matrimonial assets" so that they can be handed over to the wife.

They got into a right mess in Guernsey recently when they tried to make automatic provision for illegitimate offspring. Daft buggers.

No: the fix (again, this is in E&W) is to name the legitimate heirs explicitly, rather than leave things to "my children". If you do that then the gold-digger's only chance would be to bring a claim under the "adequate provision" clauses of the 1975 Act; and she would have to show that her child was already financially dependent on you, even though you'd never given him anything. No chance.

It may be that such a transformation doesn't become apparent or important or effective until a divorce, but the only time at which it can make logical sense for the transformation to have happened is when the state of matrimony was entered into.

Sounds interesting. What mess? Isn't there some international convention on human rights whereunder all children automatically have the same rights irrespective of whether they are "legitimate"? Doesn't Guernsey subscribe to that convention?

You and I might say so, but that's not the law. Each partner in a marriage can own his or her own property independently of the other. That the law asserts this is clear from, for example, debt recovery or bankruptcy proceedings, where a husband's creditors cannot come after the wife's possessions. (He can, of course, come after their *joint* possessions, but that's different.)

Only when it comes to the divorce settlement is everything thrown into the pool. It doesn't happen in other countries, which is why gold-digging wives flock to England to get divorced, while rich husbands try to lure them on holiday to Scotland to divorce them there.

They introduced a law putting legitimate and illegitimate heirs on an equal footing. So, for example, if someone dies intestate or with a will that leaves stuff to "my children", their illegitimate children have the same claim as legitimate ones. The trouble is, of course, the one you mention; that nobody can know for sure whether there *is* any illegitimate issue.

The practical downside emerged when people inherited a house from their father. They couldn't prove good title, because an illegitimate heir might appear out of the woodwork at any time - years later - and claim a share of the property. So the legitimate heirs couldn't sell the house, since nobody will buy a house with a defect in the title.

Apparently it's the European Convention on Human Rights and other unspecified international obligations. Guernsey changed its law to this daft new one in 2006 so as to become compliant, or so it said.

That sounds daft. There's no reason why the defect should remain with the title. The executor sells the house and distributes the proceeds among the known heirs. In so doing the executor acts on behalf of all the heirs, known or not. If later any previously unknown heirs pop up, their claim is for a share of the value of the estate, and hence for a share of the sale proceeds, not specifically for any direct rights to the family pile, as it were. If they wanted to vote against the sale, they should jolly well have made themselves known when daddy died, and even if they had they might have been outvoted so could not have prevented the sale.

Dying intestate is hardly uncommon, so this is cannot have been a new problem. The usual procedure (at least in Scotland) before a court will grant probate (called "Confirmation" here) in cases of intestacy is that the executor must first obtain a "Bond of Caution" (rather quaintly pronounced "kayshun") which is an insurance policy which in effect indemnifies the executor against just such claims.

Yes, possibly so, but he should also consider the IHT on the gift being passed back to his parents on his death. If they gift him £1000,000 and he then dies and leave sit to them they will lose up to £400,000 in IHT.

If they are living abroad when the make the gift but living in the UK when they die, is the gift covered by the UK or foreign rules I wonder.

Robert

It's not entirely like that is it? I thought that the court inE+W still makes a distinction between assets that are 'assets of the marriage' and assets that are not. if a house has been lived in as a matrimonial home it becomes an asset of the marriage regardless of who paid for it. But a 'buy to let' already owned by one of the parties at the time of the marriage does not so become. of course the courrt has wide powers to redistribute all the assets but the non-matrimonial ones are dealt with on the basis of need rather than being shared equally automatically.

Robert

That problem could be sidestepped by making sure the parents don't gift the money but merely lend it. Of course then you have the reverse problem - what happens when *they* die? And this is the more important problem, since it's statistically likelier they will die first.

Depends what you mean by "living". The general rule, AIUI, is that the inheritance (and inheritance tax) laws of the country in which the deceased was *domiciled* at time of death apply. So even if they're living here, they might not be domiciled here. I think where they lived or were domiciled when the gift was made is irrelevant. Only when they died matters.

The executor only acts on behalf of the estate. He will have fiduciary duties towards the creditors and heirs, but he does not act for them.

What kind of vote is that? An executor has no need to ask for the opinion, let alone the agreement, of anyone in the administration of the estate.

Tony