Your wills queries answered

Henry Frydenson answers your wills queries

Anon: What happens when the executor of a will does not actually do what the will says? Can action be taken in the small claims court?

This would be a breach of duty by the executor. One could take action to compel due administration. This is known as an application for inventory and account. If more extreme case, there could be an action to remove the PR under Section 50 AJA 1985. Also, consider possibility of alternative dispute resolution, whose main method is mediation.

Jackie: When a legal challenge is made by other family members, just how much 'stock' is given to the fact that the will sets out the actual wishes of the deceased, regardless of the wishes of others?

This depends on order of deaths. The survivor's property would be indisposed of and would pass on intestacy. Section 184 LPA 1925 provides where two people die together, deaths are in order of seniority. The way round this problem is to include a survivorship clause and substitutional gift.

I thought that a will correctly drawn up by a testator who has testamentary capacity is "set in stone". Is this so?

While a validly drawn up will by a testator with capacity is an important document, the Inheritance (Provision for Family and Dependants) Act 1975 provides for six classes set out in Section 1 to make application for reasonable provision as defined in the Act. This means that a Will could be partially or completely re-written by the court in such circumstances.

There are many versions of blank wills available in stores, and solicitors' charges seem high. What are the pros and cons of do it yourself will making?

While diy wills are superficially attractive, the problems that people encounter in relation to wills militate in favour of using the experienced and expert services of a solicitor.

G Spart: Father died in November 2007. He left will drawn up in 1985 leaving all assets to his six children. One child died in 1995. The executor proposes to divide estate into six parts to include the five remaining children named in the Will and the deceased's beneficiary's surviving daughters. Is this correct?

This is correct unless the will specifically provides otherwise. Indeed, the Wills Act Section 33 provides for statutory substitution.

David Lyons: My brother who has been living in the UK for the last 20 years died two months ago. His wife and children are administering his estate in the UK. He has inherited a portion of our parents' property in the Seychelles and he has made a diy will before he died. The diy will has been signed but not yet registered. Is it valid here in the UK, and in the Seychelles if apostilled?

This will depend on whether the diy will is expressed to extend to all assets of deceased and whether it fulfils the relevant requirement of Seychelles law. If it does and it has been apostilled by the Foreign Office it can be used in the Seychelles.

Anon: My mother and father moved into a council house in 1960. In 1987 father passed away. In 1988 mother made will leaving house and estate between myself and my brother. In 2000 I moved in with mother and I paid off the mortgage which amounted to just over half the amount they had borrowed. I also paid all bills for the upkeep of property. Mother has recently passed away. Can I argue that I own part of house?

This raises the subject of proprietary estoppel in that it has been held in the recent cases such as Fawner -v- Curtis that in situations such as this proprietary estoppel can be argued for. Also in appropriate cases, it might be possible to argue that a constructive trust arises.

Moira: My widowed mother is living with me - her only child, but her house and savings are in Ireland. On her death will both governments want a cut?

I presume that the question relates to Southern Ireland, and we have a double taxation treaty with the Republic of Ireland.

Alan: Given the differences between English and Scottish law, would a will made while living in Scotland be recognised in England if the individual subsequently lived in England? Also is it necessary to make special provision in the will if the individual owned property in both England and Scotland?

If an individual dies domiciled in England and Wales, Scotland or Northern Ireland, there are reciprocal arrangements so that the grant issued in one of those countries will be recognised in another of those countries.

J Brooks: Where our son inherits our estate, is it possible to stipulate that the proceeds of the estate be divided into yearly portions? We prefer that any money inherited can be used to care for him in his old age. Can this be done in a will or do we have to set up a trust?

To achieve the provisions that you wish, it would be necessary for you to set up a trust with a letter of wishes addressed to the trustees. However, recent changes to the taxation of will trusts will mean that after your death, any trust set up in your will that does not have the benefit for example of the spouse exemption, will suffer on-going charges to inheritance tax. Broadly this charge runs at 6% of the value of the assets held in the trust, every ten years. As and when your son receives money from the trust there will also be what is know as an exit charge to inheritance tax.

Depending on the size of your estate, the on-going administration of the trust might prove expensive. In addition it may also cause great upset to your son to feel that you did not trust him with your assets.

Ray Corpe: My wife and I made mirror wills four years ago. The executors are identified with their name and address, but both have since moved. Are our wills invalidated by the fact that they no longer live at the addresses shown in the wills?

No. An address in a will is merely indemnificatory, and does not invalidate a will. From a practical point of view, it would be sensible to send details of the executors' new addresses to the solicitors holding the wills.

My husband died in March 2007 and his estate was under the inheritance tax threshold. In his will, he left a simple nil rate bound discretionary trust in favour of our two children. The trust has not been set up and I want to know as a result of the new government legislation regarding the inheritance tax ceiling of �300,000, can I cancel the trust so that the whole of the will assets go to me?

Because the husband has died less than two years ago, it is possible for the executors of the discretionary trust will to do an appointment out to the wife absolutely, under IHTA 1984 which will then be read back into the will. It should be noted that a post death variation cannot be entered into unless all the beneficiaries of the trust are of full age and capacity and are ascertained.

The opinions expressed are Henry's, not the programme's. The answers are not intended to be definitive and should be used for guidance only. Always seek professional advice for your own particular situation.

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