Drafting Wills
Needs to be done effectively to permit representatives to act.
Proceed with Caution
- There is a growing area of negligence.
- Where drafting falls below an acceptable standard a solicitor can be sued
- Some firms now prohibit lawyers from drafting without a requisite level of expertise.
Preliminary Issues
- Consider tax planning!!!
o Various calculations based on last 7 years
o Valuing the estate and everything that comes with inheritance tax needs to be done
before even thinking about drafting a will
Actually Writing the Will
- There is a basic format
o Opening and revocation
Opening
Identify the testator
Nature of the document
Full name and address of the testator
‘The last will’ or ‘the last will and testament’
o This assists the court with issues of testamentary intention
Date it!!!
o Relevant date is the date of execution, leave space for that
Revocation
Revoke all previous wills and codicils
o Only to the extent the earlier will is inconsistent with the
latter one
Discuss this with the client though!
May be included in opening
Good practice to have this near the beginning
Funeral directions
Reasonable funeral expenses are exempt from IHT
These are not legally binding but usually followed
o Appointment of testators and trustees
How many executors?
As many as they would like
o Only 4 may take out the grant of probate in respect of the
same property
Sole executor?
o Nothing legally wrong with this
o The Law of Property Act 1925 S.27 gives sole executors the
same powers as two or more executors
o This can be dangerous if they become incapacitated or die
before the testator
, If the will is complex or the client wants trusts, it is a good idea to
appoint more than one
Common for these executors to also be appointed trustees
Choosing?
o They need to think about certain factors:
Availability
Ability
Willingness
Suitability (estate dependant)
Preliminary discussions with that person
Conflicts of interest
Charges
o Categories:
Friends/family
Even a beneficiary can be but some are
obviously not good choices based on their
own dealings with property and finance
Solicitors and professionals
Expert and independent
Can use a combination of these
An appointment of the law firm takes effect
as an appointment of the partners at the
date the will is made
Can have an express provision to appoint
the partners/directors at the date of death
instead
Account for any changes in name/legal
identity of the firm
Can select and individual professional
Bank or Trust Corporation
Trust corporation is a company that must
meet statutory requirements to carry on
‘trust business’
Provisions to pay PR’s?
o The law does not make provisions for general executors and
trustees to be paid for their services but they can be
reimbursed for their expenses
o Open to the testator to provide a charging clause in the will
to permit this
This is very important when asking a professional to
carry on the work
S.29 Trustees Act 2000 allows trust corporations or
professionals to charge for reasonable
renumeration without the clause
o A clause is therefore needed to allow a non-trust
corporation and a non-professional to charge for their time
Needs to be done effectively to permit representatives to act.
Proceed with Caution
- There is a growing area of negligence.
- Where drafting falls below an acceptable standard a solicitor can be sued
- Some firms now prohibit lawyers from drafting without a requisite level of expertise.
Preliminary Issues
- Consider tax planning!!!
o Various calculations based on last 7 years
o Valuing the estate and everything that comes with inheritance tax needs to be done
before even thinking about drafting a will
Actually Writing the Will
- There is a basic format
o Opening and revocation
Opening
Identify the testator
Nature of the document
Full name and address of the testator
‘The last will’ or ‘the last will and testament’
o This assists the court with issues of testamentary intention
Date it!!!
o Relevant date is the date of execution, leave space for that
Revocation
Revoke all previous wills and codicils
o Only to the extent the earlier will is inconsistent with the
latter one
Discuss this with the client though!
May be included in opening
Good practice to have this near the beginning
Funeral directions
Reasonable funeral expenses are exempt from IHT
These are not legally binding but usually followed
o Appointment of testators and trustees
How many executors?
As many as they would like
o Only 4 may take out the grant of probate in respect of the
same property
Sole executor?
o Nothing legally wrong with this
o The Law of Property Act 1925 S.27 gives sole executors the
same powers as two or more executors
o This can be dangerous if they become incapacitated or die
before the testator
, If the will is complex or the client wants trusts, it is a good idea to
appoint more than one
Common for these executors to also be appointed trustees
Choosing?
o They need to think about certain factors:
Availability
Ability
Willingness
Suitability (estate dependant)
Preliminary discussions with that person
Conflicts of interest
Charges
o Categories:
Friends/family
Even a beneficiary can be but some are
obviously not good choices based on their
own dealings with property and finance
Solicitors and professionals
Expert and independent
Can use a combination of these
An appointment of the law firm takes effect
as an appointment of the partners at the
date the will is made
Can have an express provision to appoint
the partners/directors at the date of death
instead
Account for any changes in name/legal
identity of the firm
Can select and individual professional
Bank or Trust Corporation
Trust corporation is a company that must
meet statutory requirements to carry on
‘trust business’
Provisions to pay PR’s?
o The law does not make provisions for general executors and
trustees to be paid for their services but they can be
reimbursed for their expenses
o Open to the testator to provide a charging clause in the will
to permit this
This is very important when asking a professional to
carry on the work
S.29 Trustees Act 2000 allows trust corporations or
professionals to charge for reasonable
renumeration without the clause
o A clause is therefore needed to allow a non-trust
corporation and a non-professional to charge for their time
