1. www.fosters-solicitors.co.uk YOUR WILL, YOUR WAY Take Control & Make a Will Rachel Chiarotti & Chris Fielding Fosters Solicitors William House, 19 Bank Plain, Norwich, Norfolk, NR2 4FS

2. www.fosters-solicitors.co.uk OFFICES  Norwich  Wymondham  Lowestoft  Bungay  Ipswich  Thetford  Bury St Edmunds

3. www.fosters-solicitors.co.uk Main Switchboard: 01603 620508 Freephone: 0800 214 072 Fax: 01603 624090 Email: enquiries@fosters-solicitors.co.ukenquiries@fosters-solicitors.co.uk Website: www.fosters-solicitors.co.ukwww.fosters-solicitors.co.uk CONTACTING US

4. www.fosters-solicitors.co.uk Rachel Chiarotti Senior Associate Solicitor Wills, Trusts & Probate Department WHO WE ARE Chris Fielding Partner Litigation & Dispute Resolution Department

5. www.fosters-solicitors.co.uk A Will is a legal document, which states what should happen to your money, possessions and property after you die (all these things together are called your estate). It also records: Executors - Who you are leaving in charge of executing your Will Guardians - Who is to look after your children if they are under 18 at your death Burial & Funeral Wishes WHAT IS A WILL?

6. www.fosters-solicitors.co.uk WHY DO I NEED A WILL?

7. www.fosters-solicitors.co.uk IF you are married (or in a civil partnership) and your estate is worth less than £250,000 Under the Intestacy Rules, your surviving spouse/civil partner inherits everything. IF you are married (or in a civil partnership), your estate is worth more than £250,000 and you have no children. Again under the Intestacy Rules, your surviving spouse/civil partner inherits it all. IF you are married (or in a civil partnership), your estate is worth more than £250,000 and you have children. Under the Intestacy Rules, it now starts to get interesting and potentially problematic for the surviving spouse/civil partner. The first £250,000 and the personal possessions will go to the spouse/civil partner. The remainder of the estate will be divided in half, with half going straight to the surviving spouse and the other half being divided between surviving children. If any child should pre-decease you, then their own children (your grandchildren), would get their parents share and so on if a grandchild has predeceased etc IF you are not married (or in a civil partnership) but have children Under the Intestacy Rules your children will inherit everything equally. Again, if a child has pre-deceased you, then their children will get their parents share (or childrens children etc) RULES OF INTESTACY

8. www.fosters-solicitors.co.uk IF you are not married (or in a civil partnership) and have no children Under the Intestacy Rules, your surviving relatives will inherit in the following order: Parents Brothers or sisters or their children (or childrens children etc) Half brother or sisters or their children (or childrens children etc) Grandparents Uncles or aunts (brothers and sisters of the whole blood of a parent) or their children (or childrens children etc) Uncles and aunts (brothers and sisters of the half blood of a parent) or their children (or childrens children etc) If you have no surviving spouse/civil partner, parents, children, siblings, grandparents, uncles, aunts, cousins, first cousins etc then under the Intestacy Rules, everything will go to the Crown! Issues: What if I am cohabiting? What if I am separated? RULES OF INTESTACY

9. www.fosters-solicitors.co.uk Joint Bank Accounts & Property held as Joint Tenants – Pass by the Rules of Survivorship -v- Property held as Tenants in Common – Pass through the terms of your Will/ Intestacy JOINT PROPERTY

10. www.fosters-solicitors.co.uk Transferable Nil Rate Band Allowance Main Residence Nil Rate Band Allowance (from 2017) Gifts below £3,000 /PETs/ Gifts out of Surplus Income Charity exemption Business Property Relief (BPR) & Agricultural Property Relief (APR) Insurance Policy to Cover Inheritance Tax INHERITANCE TAX

11. www.fosters-solicitors.co.uk Financial Review: Life Insurance Policies Pensions Lasting Powers of Attorney Businesses GETTING YOUR AFFAIRS IN ORDER

12. www.fosters-solicitors.co.uk Regular reviews (at least every 5 years) AND After major life events, such as: Marriage Birth of children Divorce Death of anyone named in your Will Inheritance IF YOU ALREADY HAVE A WILL

13. www.fosters-solicitors.co.uk It's painless, inexpensive to make a Will and will save your family and loved ones from unnecessary hardship, at a potentially very difficult time. You can go on with your life knowing that you've recorded your final wishes and feel the peace of mind associated with this. Come and See Us! SUMMARY

14. www.fosters-solicitors.co.uk Testator must be of sound mind when giving instructions for a will and when the will is executed. Presumption in law – a testator is presumed to be of sound mind at the time of executing a will that appears rational. If a testators capacity is contested, the burden falls to the ‘propounder’ of the will to establish sufficient mental capacity. Test for sufficient testamentary capacity is contained in –(i) common law (set out in the leading case; Banks v Goodfellow); and –(ii) in statute – the Mental Capacity Act 2005. TESTAMENTARY CAPACITY

15. www.fosters-solicitors.co.uk A will (and any codicil) must be executed in a valid way that complies with the formalities: –Execution by the testator and two witnesses. –All three individuals must be present together when signing. –Witnesses should not be beneficiaries, or potential beneficiaries under the will, nor a spouse or civil partner of the testator. The will should be in writing and dated. No additional documentation should be attached to the will. WANT OF DUE EXECUTION (SIGNED, WITNESSED, DATED!)

16. www.fosters-solicitors.co.uk Did the testator understand and approve the content of the will? Are there circumstances surrounding the testators‘knowledge and approval’that could excite the suspicion of the court? –Does will differ vastly from previous wills? –Who provided the instructions? (Someone with something to gain?) –Who prepared the will? (Again, someone who stands to benefit?) –Was the testator disabled (e.g. blind or deaf), or illiterate? A court may require affirmative evidence to deal with the above. WANT OF KNOWLEDGE & APPROVAL

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18. Presumed and actual undue influence: In the broadest possible way, the difference between the two classes is that in the case of actual undue influence something has to be done to twist the mind of the donor, whereas in the case of presumed undue influence it is more a case of what has not been done, namely ensuring that independent advice is available to the donor. (Drew v Daniel - 2005) there must exist a connection of trust and confidence that puts the donee (the person receiving a benefit, so often a beneficiary) in a strong position of influence or control over the donor (the testator). There must be evidence of an arrangement between the donor and the donee that requires explanation and the only explanation available does not satisfy the court. UNDUE INFLUENCE

19. www.fosters-solicitors.co.uk To be undue influence in law there must be – to sum it up in a word – coercion… It is only when the will of the person who becomes the testator is coerced into doing that which he or she does not desire to do, that it is undue influence. (Wingrove v Wingrove - 1885) Undue influence is usually very difficult to establish without some evidence of a degree of lacking mental capacity on the part of the testator. UNDUE INFLUENCE

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21. What is the provisions of a will exclude family members and dependents? Inheritance (Provision for Family and Dependants) Act 1975 Time limit for bringing a claim - 6 months from the date of the grant of probate ‘INHERITANCE ACT’CLAIMS

22. www.fosters-solicitors.co.uk Married spouses / civil partners Cohabitants Children and‘children of the family’ Any other persons being maintained by the deceased WHO CAN CLAIM?

23. www.fosters-solicitors.co.uk Reasonable provision has not been made for the claimant under the will or the intestacy. Reasonable provision – 2 standards apply: –Higher standard: reasonable provision, whether or not required for maintenance. –Lower standard: reasonable provision for the purpose of maintenance GROUNDS FOR CLAIM

24. www.fosters-solicitors.co.uk Higher standard Wife / husband Civil partner Recently divorced Recently dissolved civil partners Lower standard Child / child of family Any other maintained or dependent person APPLICATION OF THE 2 STANDARDS

25. www.fosters-solicitors.co.uk i.Financial needs and resources ii.The deceased persons obligations and responsibilities iii.Size and nature of the deceased’estate iv.Conduct (of the parties to the claim) THE COURTS APPROACH

26. www.fosters-solicitors.co.uk Order for interim payments (whilst a case is in the process of being decided) Court will ideally make final orders (to avoid further litigation) –Will variation: Lump sum payment Periodical payments Property settlement / transfer orders Variation of‘pre-nup’or‘post-nup’settlements Consequential orders WHAT ORDERS CAN THE COURT MAKE?

27. www.fosters-solicitors.co.uk 1.Professional solicitors will make sure you understand your will, that it is a well written legal document and that it reflects your true wishes. We will make sure your will is executed properly and holds up to scrutiny. 2.Deal with capacity issues. We can make sure that you are protected from any claim that you lacked testamentary capacity at relevant moments. 3.Use a professional and in so doing remove doubt that someone exerted undue influence (in a legal sense) over you. 4.Consider making‘reasonable provision’for those who could otherwise challenge your will through an‘Inheritance Act’claim. This field is complex so professional advice is paramount. 5.Do not delay – if you have no will or your will needs updating, you must act at the earliest opportunity! KEY POINTS

28. www.fosters-solicitors.co.uk Rachel Chiarotti Senior Associate Solicitor Wills, Trusts & Probate Department Chris Fielding Partner Litigation & Dispute Resolution Department THANK YOU