COMMENTARY To Anthony Example This is an overview as at 8th June, 2016 of your proposed Will as prepared by MR Wills, Trusts & Estate Planning, General By your Will you have first provided for the payment of all costs and debts and then you have made a gift of specified property after which you have left the residue of your estate to your wife Sarah Example subject to her surviving you. If Sarah Example does not survive you, you have provided that your residuary estate shall pass to your children equally, on the basis that if one of them dies before you, leaving children, you have made provision for those children. If these provisions fail, you have appointed further beneficiaries, Itis possible for certain persons to make a claim on your estate if it can be shown that at the time of your death your Will does not make reasonable provision for them. Any claim allowed, would be assessed by the Court. If it was anticipated that such a claim could arise it might be advisable to leave a letter to your Executor setting out any special circumstances relevant to any possible claim, The persons that may have a right to apply to the Court are * Your wife Any former wife or civil partner provided she or he has not remarried or has entered into a subsequent civil partnership, or an order of the Court bars any claim Any child of yours Any person not being your own child who in the case of any marriage of yours was treated by you as a child of the family in relation to that marriage Any other person who immediately prior to your death was being maintained wholly or in part by you The following is a commentary upon particular clauses in your Will: Clause 1 revokes all your existing Wills which would include any foreign Will that you might have. Clause 2 You have appointed your wife Sarah Example to be your Executor Subject to her surviving you but if she is unable to act, you have made a new appointment of your father Edgar Example. Your Executors' responsibilities are to * locate and identify the assets and any liabilities of the estate deal with the administration of the estate according to law by collecting in these assets determine the beneficiaries apply to the Court for a grant of Probate of the Will. (Probate is a formal document that confirms the Executors and gives them permission to administer the estate) Page 1/4make sure all claims and debts are received, assessed and paid if substantiated arrange for the distribution of the estate in accordance with the terms of the Will. prepare accounts deal with taxation returns defend litigation This Clause also appoints your Executors as Trustees of your Will, The Trustees are responsible for managing any trust that might arise in your Will holding funds for children until the date specified in the Will or until a child's 18th birthday. Your Trustees are bound to act carefully and properly and in accordance with the various Trustee Acts and will need various powers in relation to these trust funds, such as the power to pay monies for maintenance or education of a beneficiary. These powers are contained in your Will An Executor or Trustee is entitled to have proper expenses paid out of the estate, so the task should not normally be a financial burden. Your Executors can, and in most cases would, appoint solicitors or professional Trustees, at the expense of the estate, to deal with its administration. Clause 3 Here you have set out your funeral arrangements. Your relatives should know your wishes or be aware that these are contained in your Will. Clause 4 records your appointment of guardians, which will only come into effect if your wife is no longer alive. You have appointed your father Edgar Example and your mother Mary Example to be the guardians of your children whilst they are under the age of 18. Please note that your child's financial position is provided by subsequent provisions in your Will - see Clause 10. It should be noted that it is only possible to appoint a guardian to those children which the law regards you as having "parental responsibility’ for. To be able to make an appointment you must be one of the following either the mother or father of a child who were married to each other at the time of the child's birth the child's mother whether or not she was married to the father at the time of the child's birth the father of the child if he marries the natural mother. the father of a child, born since December 2003, who was not married to the mother at the time of the child's birth but is named on the birth certificate the father of a child who was not married to the mother at the time of the child's birth but who has been given parental responsibility by a valid parental responsibility agreement entered into with the child's mother Page 2/4a person granted parental responsibility by a court * a properly appointed guardian. By making a guardian appointment you cannot take away the rights of a person, surviving you, who also has parental responsibility for any child of yours Clause 5 records the provisions you have made for your pets, which will only apply if your wife is no longer alive. Clause 6 You have made a gift of your Jewellery to your son James Example, free of any taxes. Clause 7 confirms that your estate is to consist of all property wherever it is which you shall own at your death, This makes it unnecessary in your Will to refer to, or list all your assets. Clause 8 provides that your Executors will hold all your estate excluding those assets which you have specifically gifted and shall pay from it any: * outstanding debts * funeral expenses * the costs of the administration * Inheritance Tax What is left is referred to as your "residuary estate" or "residue", Where jointly owned land is held in your estate and itis intended that a share of this is to pass under your Will it is very important to establish if you do so as joint tenants or as tenants in common. If the asset is held by you as joint tenants this asset will pass to the surviving joint owner or owners irrespective of what your Will says. This could apply to other jointly owned assets, such as bank accounts and investments. If you are in doubt or want help please contact MR Wills, Trusts & Estate Planning, Clause 9 The gift of residue to Sarah Example is subject to her surviving you by 30 days. This is a usual condition and overcomes problems if you and Sarah Example were to die in a joint accident. In such a situation without the condition, the administration of the estates would be more complex in that the estate of the first dying would pass into the other's estate rather than directly going to the eventual beneficiaries. You will note the 30 days condition is stated not to apply if you both die in circumstances where it cannot be known who survived the other. The reason for this is that for the purposes of determining the transfer of your estate it will be generally presumed that the elder died first, However for Inheritance Tax purposes you will be treated as having died simultaneously. Therefore by excluding any condition as to survivorship in the Will of the older person his or her estate will by Section 184 devolve upon the younger's estate and will be exempt for Inheritance Tax. However the younger person would not be treated, immediately before his or her death, as being beneficially entitled to older's estate and the older's estate will not Page 3/4be added on to the younger's estate for inheritance tax purposes.Therefore in these special circumstances a considerable tax saving might arise for the benefit of your surviving relatives Clause 10 will only be applicable if Sarah Example does not survive you. You have then provided that your residuary estate shall pass to your children equally, on the basis that if one of them dies before you, with children of their own, those children will take that share, when they reach the age of 21, Otherwise it will be divided between your children who survive Clause 12 You have then provided that your residuary estate shall pass to your father Edgar Example and your mother Mary Example equally, on the basis that if one of them dies before you, leaving children, those children will take that share. Otherwise it will pass to the survivor. Clause 13 sets out additional provisions to those which exist already at law, e.g. the Trustee Acts, to safeguard your estate and assist your Executors with its administration. These provisions also ensure that where a beneficiary is under age, your Trustees are able to make available the income to the parent or guardian of that beneficiary, if needed for his or her maintenance. Further, if considered necessary your Trustees could, out of the capital, pay for such things as that beneficiary's maintenance or education. Attestation or signing clause. It is essential that your Will is signed and witnessed. Until it is signed and witnessed correctly itwill have no effect. Unless MR. Wills, Trusts & Estate Planning are arranging the signing of your Will, it is so important that you follow the signing procedure as set out in the accompanying instructions. If once you have signed your Will, your address changes or an address or name of a person you have referred to in your Will changes, it is not usually necessary, for that reason alone, to change your Will. It is recommended however that you place a separate note of any address changes with your Will If there are any matters of which you are unsure or which require changing please contact MR Wills, Trusts & Estate Planning. Page 4/4