Wills and Lifetime Planning

3 Matter Plans Included

ALERTS - Nil
Full Commentary - Wills
Reference materials
- Electronic Signing and Witnessing
- Looking to the Future
- 101 Succession Answers
- Article: Avoiding estate disputes in eight easy steps
Overview

A will contains a person’s instructions on distributing their property and assets after their death. The majority of the public does not have a will, mainly due to two factors:
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Summary of the process

The usual steps in acting for the testator making a will are:
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Testing field stripping
- Deed - Word Content Control, Field, Question, Calc, Repeating, Conditional
- Deed - Word Content Control, Field, Question, Calc, Repeating
- Deed - Word Content Control, Field, Question, Calc
- Deed - Word Content Control, Field, Question
A. Getting the matter underway
- File cover sheet - Wills
- To do list - Wills
- First steps
- Retainer instructions - Will - For one person
- Retainer instructions - Wills - For couples
- Compliance documents
  - Client Due Diligence and Anti-money Laundering Guidance
  - Client Details, Identity Verification and Source of Funds
  - Conflict of interest check
  - Client and matter risk assessment
  - If required - Reporting an issue
    
    Anti-money laundering internal disclosure
- Initial letter to client enclosing Client Care and Terms of Business
- Enclosures for initial letter to client
  - Client care information
  - Terms of business
  - Scope of work - Wills
  - Scope of work - Wills and lasting powers of attorney
  - A summary of the will-making process
- Taking instructions for wills
  
  While it is best to obtain written instructions in all matters, it is doubly important for wills. The Retainer Instructions serve this purpose. Instructions need to include full details of the family and living arrangements of the testator, their assets and their testamentary intentions.
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- Additional questions to ask the testator when taking instructions
  
  Family law orders Are there any orders pursuant to the Family Law Act 1996 affecting the testator’s assets?
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- Testamentary capacity
  
  A practitioner’s first consideration is whether the client has testamentary capacity. Challenging a will for lack of testamentary capacity will likely be decided in the courts. This process can be a costly and time-consuming for the deceased’s estate.
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- If required - Testamentary capacity
  - Letter to client enclosing consent
  - Consent to provide information - Health professional
  - Letter to medical practitioner
- If required - Unable to attend office
  - Letter to client sending will questionnaire and authority when unable to attend
  - Enclosure - Will questionnaire
- If required - Discretionary trusts in wills
  - Letter to client - General advice on the benefits of discretionary trusts in wills
  - Enclosure - Benefits of discretionary trusts in wills
- If required - Authority for documents
  - Letter to previous solicitor with authority to forward documents
  - Authority to forward documents and information
- Time and costs estimates
- If required - Letter to client varying the Client Care and Terms of Business
  - Letter to client varying the Client Care and Terms of Business
- General deeds, agreements, statements, declarations, consents, and execution clauses
  - Deeds and agreements
  - Deeds
    
    Deed for general use
    
    Deed of assignment of agreement
    
    Deed of assignment of agreement with consent
    
    Deed of assignment of an insurance policy
    
    Deed of assignment of equitable interest in residential land
    
    Deed of gift
    
    Deed of guarantee
    
    Deed of release
    
    Deed of release and grant
    
    General deed of indemnity
    
    Library of standard clauses for deeds
    
    Amendment
    
    Confidentiality
    
    Confidentiality - Extensive
    
    Costs
    
    Counterparts
    
    Dispute resolution
    
    Events beyond control
    
    Governing law and jurisdiction
    
    Interpretation
    
    No assignment
    
    Notices
    
    Severance
    
    Third parties
    
    Waiver
    
    Whole agreement
  - Agreements
    
    Agreement for general use
    
    Boundary agreement
    
    Confidentiality agreement
    
    Construction agreement
    
    Heads of agreement
    
    Library of standard clauses for agreements
    
    Amendment
    
    Confidentiality
    
    Confidentiality - Extensive
    
    Costs
    
    Counterparts
    
    Dispute resolution
    
    Events beyond control
    
    Governing law and jurisdiction
    
    Interpretation
    
    No assignment
    
    Notices
    
    Severance
    
    Third parties
    
    Waiver
    
    Whole agreement
  - Statements and declarations
    
    Statement of truth
    
    Statement of truth - High Court
    
    Statutory declaration
    
    Statutory declaration of solvency
    
    Affidavit - General
    
    Exhibit sheet for affidavits - General
    
    Witness statement - Family matters
    
    Exhibit sheet to witness statement - Family matters
    
    Witness statement - Civil matters
    
    Exhibit sheet to witness statement - Civil matters
  - Execution clauses
    
    Execution clauses - Agreements and contracts
    
    Execution clauses - Deeds
    
    Execution clauses - Overseas companies
  - Consents
    
    If required - Personal data consent - General
    
    Letter to client enclosing consent - General
    
    Letter to third party enclosing consent - General
    
    General letter enclosing client consent
    
    General letter enclosing third party consent
    
    Consent to provide information - General
    
    Consent to provide information - General - Third party
    
    If required - Personal data consent - Health professional
    
    Letter to client enclosing consent - Health professional
    
    Letter to third party enclosing consent - Health professional
    
    Letter to doctor enclosing client consent
    
    Letter to doctor enclosing third party consent
    
    Consent to provide information - Health professional
    
    Consent to provide information - Health professional - Third party
    
    Change of name
    
    Change of name deed for an adult - Concise
    
    Change of name deed for a minor - Concise
    
    If required - Enrolment by an adult
    
    Change of name deed for an adult - For enrolment
    
    Statutory declaration - Enrolment of adult change of name deed
    
    Notice for the London Gazette on the change of name of an adult
    
    Consent to enrolment of change of name of an adult
    
    If required - Enrolment by a minor
    
    Change of name deed for a minor - For enrolment
    
    Statutory declaration - Enrolment of minor change of name deed
    
    Affidavit of best interest for the change of name of a minor
    
    Consent to enrolment of change of name of a minor
B. Initial will considerations
- Requirements for a valid will
  
  A will is only valid under s 9 of the Wills Act 1837 when:
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- Revocation by divorce, dissolution, or annulment
  
  Unless there is a contrary intention in the will, the result of divorce, dissolution, or annulment of a marriage or civil partnership is that gifts and appointments under the will to a former spouse or civil partner are void. Consequently, the subject matter passes, or the appointment is as if the ...
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- Executors and trustees
  
  Appointing an executor is straightforward, and there is no limit to the number. A company cannot be an executor other than a trustee company.
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- Practitioners as executors
  
  Appointing the practitioner as an executor requires the client to be provided with sufficient information to decide the appointment and its related costs. For example, the client needs to understand the choice of appointing a layperson as executor, who can then engage the services of a practitioner ...
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- Burial and cremation
  
  How the testator wishes their remains to be disposed of or detailed wishes for a funeral service can be expressed in the will. Two issues arise:
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- Guardianship
  
  Guardianship covers all the rights and responsibilities a parent has over a child and the child’s property. The appointment of a guardian for the testator’s children is effective immediately on the death of the last surviving parent. It is most relevant where both parents pass away at the same time.
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- Dispositions of property
  
  Disposition of property is the area in which complexity can arise. The precedent wills provided on the matter plan are drafted so that interpretation is straightforward.
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- Letter to client enclosing notice of severance of joint tenancy
- Notice of severance of joint tenancy
- Intestacy
  
  If there is no will, the deceased dies intestate. Section 46 of the Administration of Estates Act 1925 deals with an intestate’s estate distribution rules. For more detail, see the Letters of Administration guide.
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- Pensions
  
  Pension schemes are complex, and a client’s pension scheme provider can provide details of all entitlements and to whom. Pension entitlements cannot be disposed of by will but can be by using an expression of wish procedure. The pension provider is sent details of the client’s nominated ...
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- Expression of wishes - Pension
- Assets generally not passing under a will
  
  Property owned with another or others as joint tenants pass automatically to the survivor, and the deceased’s share will not form part of their estate. Property owned with another or others as tenants in common will form part of the deceased’s estate. Their share in the property will be dealt with ...
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- Tax generally
  
  Most lawyers are not tax specialists. Clients need to seek appropriate information and guidance from an accountant or specialist tax advisor. The Law Society has published general Guidance for solicitors advising on tax. The guidance summarises the key aspects of the frameworks that apply to ...
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C. The will
- Avoiding family provision claims
  
  An individual is at liberty to prepare their will as they wish. Save for any legal and contractual issues such as pensions and life insurance, a well-drafted will puts the testator’s wishes in place. However, relationships within families can be complex. For example, a client may wish to exclude an ...
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- Challenging the validity of a will
  
  Family members, dependents, and beneficiaries can question the validity of a will. They can allege that the testator lacked capacity to make the will or executed it under undue influence.
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- Will for one person
  - Will for one person
  - Explanatory notes - Standard will
- Wills for spouses
  - Client 1 will for spouses with client 2 spouse as trustee and beneficiary
  - Client 2 will for spouses with client 1 spouse as trustee and beneficiary
- Wills including STEP provisions
  - STEP provisions
    
    Wills must include appropriate administrative provisions for the proper administration and management of the estate and any trusts created by the will. The Society of Trust and Estate Practitioners (STEP) provisions can be incorporated into a will by reference, avoiding the need to set out the ...
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  - Will for one person with STEP provisions
  - Client 1 will for spouses with client 2 spouse as trustee and beneficiary with STEP provisions
  - Client 2 will for spouses with client 1 spouse as trustee and beneficiary with STEP provisions
  - STEP Standard Provisions, 3rd Edition (England and Wales)
- Wills for blended families
  - Will for one person with blended family
  - Client 1 will for blended family with client 2 as trustee
  - Client 2 will for blended family with client 1 as trustee
- Wills creating discretionary trusts
  - Discretionary trusts in wills
    
    A testator can leave their estate to a beneficiary or group of beneficiaries absolutely. Alternatively, the client can by will create a testamentary discretionary trust empowering the trustee to manage the trust assets. The trustee acts in a fiduciary capacity subject to the powers and limitations ...
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  - Will for one person creating discretionary trust
  - Client 1 will creating discretionary trust with client 2 as executor and trustee
  - Client 2 will creating discretionary trust with client 1 as executor and trustee
  - Explanatory notes - Will creating a discretionary trust
- Nil-rate band will
  - Will for one person nil-rate band
  - Explanatory notes - Nil-rate band will
- Library of clauses
  - Body - Burial in reserved plot
  - Charity - Gifts to
  - Body - Burial with modest funeral
  - Body - Cremation
  - Body - Funeral service location
  - Body - Medical research purposes
  - Chattel disposal in rounds
  - Debt forgiveness of family members
  - Debt repayment by family members
  - Digital assets - Power for trustees to deal
  - Direction as to wishes
  - Disabled person - Clause making provision for trust for disabled person
  - Disclaimer of gift by beneficiary or trustee
  - Dissolution - Clause in contemplation of dissolution
  - Divorce - Clause in contemplation of divorce
  - Establish a fund for particular beneficiary
  - Establish a fund for support of spouse
  - Excluding beneficiaries - Some reasons for excluding beneficiaries
  - Excluding section 33 of the Wills Act 1837
  - Foreign operation of will
  - Gift of 100% inheritance tax free agricultural and business property
  - Gift of agricultural property
  - Gift of all tangible and moveable property
  - Gift of business
  - Gift of business shares not exceeding inheritance tax threshold
  - Guardians - Appointment of guardians
  - Guardians - Appointment of guardians when other parent has not survived
  - Immediate post death interest in property
  - Indexed linked legacy
  - Inheritance tax payable by beneficiary
  - Inheritance tax payable by estate
  - Law firm appointed executors trustees
  - Life estate
  - Marriage - Clause in contemplation of marriage
  - Mutual wills - Agreement to make mutual wills
  - Mutual wills - Clause wills not mutual
  - Nil-rate band legacy
  - Option to purchase
  - Power to run business
  - Professional charges by solicitor executor
  - Provision for tax burden to be on non-exempt residue
  - Right of occupation of home
  - Separate trustee for minor beneficiary
- Library of discretionary trust and vulnerable beneficiary trust clauses
  - Trusts for vulnerable beneficiaries
    
    A client can set up a trust for vulnerable beneficiaries, which has advantages of special tax treatment and the flexibility of a discretionary trust. A precedent clause for inclusion in the will is in the library of clauses. A vulnerable beneficiary is:
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  - Clause to leave money or property to existing vulnerable beneficiary trust
  - Clause to establish trust for vulnerable beneficiary via will with trust deed annexed and executors to be trustees of trust for vulnerable beneficiary
  - Discretionary trust clause vesting when children reach majority
  - Vulnerable beneficiary trust deed
- Library of attestation clauses
  - Blind
  - Can read but unable to write
  - Can read but unable to write or make a mark
  - Can write but unable to read
  - Unable to read but can speak and understand English and can sign
  - Unable to read or speak English but can sign
  - Unable to read or write
  - Unable to speak or read English or write
- If required - Letter of wishes
  - Letter of wishes and lists
    
    A testator can leave a non-testamentary letter of wishes or a list for the executor’s guidance. However, it is not binding on the executor. It is prudent to clarify the intention of the letter or list to avoid it being entered as an informal testamentary document at the Probate Registry.
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  - Letter to executor expressing wishes
  - Letter of wishes - Nil-rate band trust
- If required - Multi-jurisdictional estates and international wills
  - Multi-jurisdictional estates and international wills
    
    Multi-jurisdictional estates Some UK citizens have property in other jurisdictions. Appointing executors over the whole of the estate wherever situated may be the most convenient method of dealing with this issue.
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  - International will certificate
- If required - Codicil
  - Codicil
- If required - Sending draft wills for approval
  - Letter to client with draft wills for approval
D. Other estate planning considerations
- Rectification of a will
  - Rectification and construction of a will
    
    Section 20 of the Administration of Justice Act 1982 allows the court to order a will to be rectified to remedy a failure to carry out the testator’s intentions due to either a clerical error or a failure to understand their instructions. In considering rectification, the court needs to ...
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  - Letter to court filing documents
  - Claim form (probate claim)
  - Claim form (CPR Part 8)
  - Clause - Particulars of claim for rectification of a will claim
  - Clause - Order for rectification of a will
E. Execution
- Execution
  
  Section 9 of the Wills Act 1837 provides how to execute a will. It must be signed by a testator, who has capacity, in front of at least two witnesses who need to be present and who then sign in front of the testator.
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- Letter to client advising that will is ready to sign
- If required - Sending will for signing
  - Letter to client with will and signing instructions
  - Letter to client enclosing will with STEP provisions and signing instructions
  - STEP Standard Provisions, 3rd Edition (England and Wales)
  - Enclosure - Instructions for signing
- Attendance note - Will execution
F. Finalising the matter
- Registering and storing the will
  
  The registration of wills is not compulsory. However, it can be useful, especially for clients who have few friends or relatives or who are concerned their will may not be found in the event of their death. The Law Society has endorsed The National Will Register. It stores details of the testator, ...
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- Revising the will
  
  Testators ought to be encouraged to review their will regularly. The events which can lead to a change of will include:
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- Letter to client finalising the matter and enclosing a copy of signed will
- Letter to client finalising the matter enclosing copy of signed will and LPA
- Receipt for original will
- Example invoice
- Invoice recital - Wills
- Enclosure - Explaining the bill
- Closing the file
- File closing checklist
- File review form - General
Further information
Comments and suggestions for By Lawyers

ALERTS - Nil
Full Commentary - Powers of Attorney and Advance Decisions
Reference materials
- Electronic Signing and Witnessing
- Looking to the Future
- 101 Succession Answers
Overview

A power of attorney is a formal document by which one person gives another person or people authority to make decisions on their behalf. The person giving the authority is the donor, and those receiving it are the attorneys. It is crucial to ensure that detailed instructions are taken from the ...
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Summary of the process

The usual steps in acting for the donor on a lasting power of attorney (LPA) are:
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A. Getting the matter underway
- File cover sheet - Powers, advance decisions and protection orders
- To do list - Powers of attorney and advance decisions
- First steps
- Retainer instructions - Powers of attorney and advance decisions - For one person
- Retainer instructions - Powers of attorney and advance decisions - For couples
- Compliance documents
  - Client Due Diligence and Anti-money Laundering Guidance
  - Client Details, Identity Verification and Source of Funds
  - Conflict of interest check
  - Client and matter risk assessment
  - If required - Reporting an issue
    
    Anti-money laundering internal disclosure
- Initial letter to client following instructions for LPA enclosing Client Care and Terms of Business and enclosures
- Initial letter to client following instructions for general power of attorney enclosing Client Care and Terms of Business and enclosures
- Enclosures for initial letter to client
  - Client care information
  - Terms of business
  - Scope of work - Powers of attorney and advance decisions
  - Scope of work - Wills and lasting powers of attorney
  - A summary of the lasting power of attorney process
  - LP12 Make and register your lasting power of attorney
  - LP11 Getting started as an attorney: property and financial affairs
  - LP10 Getting started as an attorney: health and welfare
- If required - Doctor to provide capacity assessment
  - Letter to doctor to assess client's capacity to complete a lasting power of attorney
- If required - Consent to same firm acting
  - Consent to same firm acting for all parties
- If required - Authority to forward documents and information
  - Authority to forward documents and information
- Time and costs estimates
- If required - Letter to client varying the Client Care and Terms of Business
  - Letter to client varying the Client Care and Terms of Business
- General deeds, agreements, statements, declarations, consents, and execution clauses
  - Deeds and agreements
  - Deeds
    
    Deed for general use
    
    Deed of assignment of agreement
    
    Deed of assignment of agreement with consent
    
    Deed of assignment of an insurance policy
    
    Deed of assignment of equitable interest in residential land
    
    Deed of gift
    
    Deed of guarantee
    
    Deed of release
    
    Deed of release and grant
    
    General deed of indemnity
    
    Library of standard clauses for deeds
    
    Amendment
    
    Confidentiality
    
    Confidentiality - Extensive
    
    Costs
    
    Counterparts
    
    Dispute resolution
    
    Events beyond control
    
    Governing law and jurisdiction
    
    Interpretation
    
    No assignment
    
    Notices
    
    Severance
    
    Third parties
    
    Waiver
    
    Whole agreement
  - Agreements
    
    Agreement for general use
    
    Boundary agreement
    
    Confidentiality agreement
    
    Construction agreement
    
    Heads of agreement
    
    Library of standard clauses for agreements
    
    Amendment
    
    Confidentiality
    
    Confidentiality - Extensive
    
    Costs
    
    Counterparts
    
    Dispute resolution
    
    Events beyond control
    
    Governing law and jurisdiction
    
    Interpretation
    
    No assignment
    
    Notices
    
    Severance
    
    Third parties
    
    Waiver
    
    Whole agreement
  - Statements and declarations
    
    Statement of truth
    
    Statement of truth - High Court
    
    Statutory declaration
    
    Statutory declaration of solvency
    
    Affidavit - General
    
    Exhibit sheet for affidavits - General
    
    Witness statement - Family matters
    
    Exhibit sheet to witness statement - Family matters
    
    Witness statement - Civil matters
    
    Exhibit sheet to witness statement - Civil matters
  - Execution clauses
    
    Execution clauses - Agreements and contracts
    
    Execution clauses - Deeds
    
    Execution clauses - Overseas companies
  - Consents
    
    If required - Personal data consent - General
    
    Letter to client enclosing consent - General
    
    Letter to third party enclosing consent - General
    
    General letter enclosing client consent
    
    General letter enclosing third party consent
    
    Consent to provide information - General
    
    Consent to provide information - General - Third party
    
    If required - Personal data consent - Health professional
    
    Letter to client enclosing consent - Health professional
    
    Letter to third party enclosing consent - Health professional
    
    Letter to doctor enclosing client consent
    
    Letter to doctor enclosing third party consent
    
    Consent to provide information - Health professional
    
    Consent to provide information - Health professional - Third party
    
    Change of name
    
    Change of name deed for an adult - Concise
    
    Change of name deed for a minor - Concise
    
    If required - Enrolment by an adult
    
    Change of name deed for an adult - For enrolment
    
    Statutory declaration - Enrolment of adult change of name deed
    
    Notice for the London Gazette on the change of name of an adult
    
    Consent to enrolment of change of name of an adult
    
    If required - Enrolment by a minor
    
    Change of name deed for a minor - For enrolment
    
    Statutory declaration - Enrolment of minor change of name deed
    
    Affidavit of best interest for the change of name of a minor
    
    Consent to enrolment of change of name of a minor
B. Authority and dealings
- The scope of an attorney’s authority
  
  As the donor is liable for their attorney’s actions, they should appoint someone they trust implicitly. Third parties are legally entitled to assume that the attorney’s acts and decisions are impliedly authorised for and on behalf of the donor. This is known as apparent authority. The donor will ...
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- What an attorney cannot do
  
  An attorney cannot be authorised to:
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- Informal arrangements
  
  A person who lacks capacity is unable to grant a power of attorney. Without a power of attorney, their affairs can be managed informally by a family member or friend. However, where informal arrangements are insufficient, an application can be made to the Court of Protection for a deputyship order ...
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- Land transactions
  
  See HM Land Registry Practice guide 9: powers of attorney and registered land. A buyer in a property transaction involving an attorney is entitled to assume that the power has not been revoked, provided the purchase takes place within 12 months of the date of the power.
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- If required - Non-revocation of power
  - Statutory declaration as to non-revocation for powers more than 12 months old at the date of the disposition for which they are used (HMLR Rule 62 - Appendix B)
- Corporations and directors
  
  Corporations A corporation has its own legal identity and can be appointed as an attorney. The statutory authority is found in s 47 of the Companies Act 2006.
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C. General powers of attorney
- General powers of attorney
  
  Applications to register a dealing with land must be lodged with a certified copy of the general power of attorney. Rule 62 of the Land Registration Rules 2003 empowers HM Land Registry to require evidence of non-revocation if the power is more than 12 months old.
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- General power of attorney
- Library of clauses for power of attorney
  - Company appoint attorney to conduct the business of the company
  - Company appoint attorney to execute documents
  - Director appointing substitute during absence
  - Discharge of mortgage
  - Mortgage
  - Purchase of land and property
  - Sale of land and property
- Execution
  
  Section 1 of the Powers of Attorney Act 1971 requires the instrument creating the power to be executed as a deed. This means the document must be signed by the donor, witnessed by an adult who is not a party to the deed, and delivered, which means showing by words or conduct an intention to be ...
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- If required - Certification
  - Certificate as to execution of power of attorney (HMLR Rule 61 - Appendix A)
  - Statutory declaration as to non-revocation for powers more than 12 months old at the date of the disposition for which they are used (HMLR Rule 62 - Appendix B)
- Proof of power
  
  When the instrument is prepared, it is good practice to provide several certified copies to the donor or the attorney. Section 3 of the Powers of Attorney Act 1971 provides that a power of attorney may be proved by providing a copy of the power, which has been certified by the donor, a ...
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- If required - Other powers
  - Other powers of attorney
    
    A security power A security power is a power of attorney expressed to be irrevocable.
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  - General trustee power of attorney s 25(5) Trustee Act 1925
  - Power of attorney trustee to beneficiary s 9 Trusts of Land and Appointment of Trustees Act 1996
D. Lasting powers of attorney
- Lasting powers of attorney
  
  A lasting power of attorney is to be registered regardless of whether it is used to deal with land. There is a presumption in favour of a buyer whose interest depends on whether that transaction was valid: s 14(4) of the Mental Capacity Act 2005.
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- Property and financial decisions
  
  A lasting power of attorney gives the attorney the right to manage the donor’s finances and property. It authorises the attorney, subject to any limitations, to do anything the donor can lawfully do. Decisions can include managing bank accounts, paying bills, and selling or re-mortgaging property. ...
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- Health and welfare decisions
  
  A lasting power of attorney for health and welfare decisions can only be used when the donor has lost mental capacity. Mental capacity is the ability to understand the reasoning behind a decision and the consequences of making it.
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- Mental Capacity Act 2005 Code of Practice
  
  Attorneys under a lasting power of attorney are among the categories of people legally required to have regard to the Mental Health Act 2005 Code of Practice. The Act requires the attorney to be aware of the Code of Practice and take it into consideration when acting or making decisions on behalf ...
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- Legislative limitations on lasting powers
  
  Sections 11 and 12 of the Mental Capacity Act 2005 outline the restrictions and scope of a lasting power of attorney as to gift making. For example, with some specific exceptions, they do not permit gifts or conferring benefits. Section 18 sets out the powers of the attorney in relation ...
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- Appointing a substitute attorney under a lasting power
  
  An attorney cannot be given the power to appoint a substitute or successor, but the instrument can appoint a person to replace the attorney on the occurrence of:
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- Certificate provider
  
  A power of attorney includes a certificate confirming that the donor:
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- The functions of an attorney
  
  The Office of the Public Guardian provides that an attorney under a lasting power of attorney for health and care decisions carry out certain functions, including:
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- Letter to doctor requesting access to medical records
- Letter to medical practitioner from attorney requesting access to patient’s medical records
- Lasting power of attorney property and financial affairs
  - Lasting power of attorney - financial decisions
  - Attendance note by LPA certificate provider
  - Continuation sheets
    
    Lasting power of attorney - continuation sheet 1 (additional people)
    
    Lasting power of attorney - continuation sheet 2 (additional information)
    
    Lasting power of attorney - continuation sheet 3 (if the donor cannot sign or mark)
    
    Lasting power of attorney - continuation sheet 4 (trust corporation appointed as an attorney)
- Lasting power of attorney health and care
  - Lasting power of attorney - health and care decisions
  - Attendance note by LPA certificate provider
  - Continuation sheets
    
    Lasting power of attorney - continuation sheet 1 (additional people)
    
    Lasting power of attorney - continuation sheet 2 (additional information)
    
    Lasting power of attorney - continuation sheet 3 (if the donor cannot sign or mark)
    
    Lasting power of attorney - continuation sheet 4 (trust corporation appointed as an attorney)
- Signing a lasting power
  
  The different sections of the lasting power of attorney must be signed in the correct order, and while not a legal requirement, it is best practice to ensure that the witness is over 18 and not related to the donor.
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- Letter to client to attend to sign powers of attorney
- Letter to attorney with enclosures to sign section 11
- Letter to replacement attorney with enclosures to sign section 11
- Enclosures - Getting started as an attorney
  - LP11 Getting started as an attorney: property and financial affairs
  - LP10 Getting started as an attorney: health and welfare
- Registration of a lasting power of attorney
  
  The lasting power of attorney can be used once registered at the Office of the Public Guardian. Provided the lasting power of attorney was created while the donor was mentally capable, it can be registered at any time.
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- If required - Medical records and capacity certificate
  - Letter to doctor to sign section 10 capacity certificate
  - Letter to doctor requesting access to medical records
- Form to notify people
- Letter to named person serving LP3 notice
- Register your lasting power of attorney
- Letter to the Office of the Public Guardian for registration
- If required - Exemption or remission of application fees
  - Application for exemption or remission of LPA and EPA application fees - guidance
  - Application for exemption or remission of LPA or EPA application fees
- If required - Objection to registration
  - Letter to Court of Protection lodging application to object
  - Letter to the Office of the Public Guardian lodging objection
  - Objection by the donor to the registration of a lasting power of attorney(s)
  - Objection to the office of the public guardian of a proposed registration of lasting power of attorney on factual grounds
  - Notice to the office of the public guardian of an application to object to registration of a lasting power of attorney
  - Application to object to the registration of a lasting power of attorney (LPA)
E. Enduring powers of attorney
- Enduring power of attorney
  
  Enduring powers of attorney made and signed before 1 October 2007 under the now repealed Enduring Powers of Attorney Act 1985 are still effective for the purposes they were drawn. See the Enduring powers of attorney section below.
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- Registration of an enduring power of attorney
  
  Enduring powers of attorney are to be registered when the donor loses capacity and before the power is used. There are two stages to the registration: notification and application.
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- Notice of intention to apply for registration of an enduring power of attorney
- Application for registration of an enduring power of attorney
- If required - Objection to registration
  - Objection to the registration of an enduring power of attorney
    
    Anyone can object to the registration of an enduring power of attorney on one of the following grounds:
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  - Letter to Court of Protection lodging application to object
  - Letter to the Office of the Public Guardian lodging objection
  - Notice to the office of the public guardian of an objection to registration of an enduring power of attorney
  - Application relating to the registration of an enduring power of attorney (EPA)
F. Revocation and disclaimer
- Revocation
  
  Unlike a will, a power of attorney does not revoke a previous appointment by the donor. If prior powers of attorney exist and are not to continue, the donor needs to revoke them. A donor can revoke a power of attorney or the appointment of a particular attorney at any time by giving written notice ...
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- Deed of revocation of a lasting power of attorney
- Deed of revocation of an enduring power of attorney
- Deed of partial revocation of a lasting power of attorney
- Deed of partial revocation of an enduring power of attorney
- Letter to attorney confirming revocation of power
- Letter to third party confirming revocation of power
- If required - Registration of revocation
  - Letter to the Office of the Public Guardian enclosing deed of revocation of power
  - Letter to Land Registry enclosing deed of revocation of power
- Disclaimer
  
  General power of attorney An attorney can disclaim their role under a general appointment at any time without the donor’s permission. The attorney does so by notice in writing to the donor.
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- Letter to donor disclaiming appointment
- Letter to attorney enclosing disclaimer
- Disclaimer by proposed or acting attorney under a lasting power of attorney
G. Advance decision - Living will
- Advance decision
  
  Sometimes referred to as living wills, advance decisions are provided for in ss 24–26 of the Mental Capacity Act 2005. An advance decision allows people to document their wishes and values regarding medical treatment.
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- Creating an advance decision
  
  In England and Wales, there is no prescribed advance decision form. However, a client’s advance decision is compliant with s 25 of the Mental Capacity Act 2005 if:
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- Advance decision - Concise
- Advance decision - Extensive
- If required - Revocation of advance decision
  - Revocation of an advance decision
    
    There is no prescribed form for revoking an advance decision. However, a revocation precedent has been included in the matter plan. A document or letter expressing the client’s wishes will also suffice. Copies of revoked advance decisions are destroyed.
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  - Deed of revocation of advance decision
H. Finalising the matter
- Letter to attorney enclosing copy of registered lasting powers of attorney
- Letter to client enclosing copy of registered lasting powers of attorney and account
- Example invoice
- Invoice recital - Lasting powers of attorney
- Enclosure - Explaining the bill
- Closing the file
- File closing checklist
- File review form - General
Further information
Comments and suggestions for By Lawyers

101 Succession Answers
Estates
- Accounts
  
  Duty to keep accounts The personal representatives of an estate have a legal duty to keep accounts of the administration of an estate: s 25 of the Administration of Estates Act 1925.
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- Ademption
  
  The term ademption refers to when a specific gift to a named beneficiary is defeated – adeemed – because the property which is the subject of the gift no longer exists. For example, this might apply where a testator makes a specific gift of property to a beneficiary, but then after making the will ...
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- Administration
  
  Personal representatives administer an estate by collecting in the assets, paying the debts, and distributing the estate according to the will or the intestacy rules. Part III of the Administration of Estates Act 1925 sets out the principles for the administration of the assets.
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- Administrator
  
  Where there is no valid will r 22 of The Non-Contentious Probate Rules 1987 sets out who may act as the personal representative. The grant of letters of administration is the document that confers the authority to administer the estate. The personal representative is referred to as the ...
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- Administrator duties
  
  If the deceased did not make a will or the will does not effectively appoint executors the person entitled to act as a personal representative is referred to as an administrator, but they have no authority until the court issues the grant. The deceased's assets vest in the Public Trustee until the ...
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- Application for a grant of probate or letters of administration
  
  Any need to apply A grant of representation is not always required. There is no legislative requirement to apply for a grant in every case.
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- Application to revoke a grant of probate or letters of administration
  
  An application may be made to the High Court to revoke a grant of probate or letters of administration and is governed by the current rules set out in Part 57 of the Civil Procedure Rules. A probate claim in the High Court is brought by a claim form issued out of Chancery Chambers in London or ...
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- Application with the will attached
  
  Where the will is invalid or where the named executor is unavailable, and no substitute is appointed, then an application for a grant of letters of administration with the will annexed needs to be made. Most commonly in this scenario the applicant is one of the beneficiaries under the will, but it ...
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- Assets – Transfer or transmission
  
  Real property
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- Assets of the estate
  
  Beneficiary in possession of estate property The personal representatives have a duty to call in the estate's assets, including any property held by beneficiaries.
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- Beddoe application
  
  A Beddoe application is a court application made by the executors or trustees requesting directions on whether or not to proceed with a claim made by or against a third party. It is a separate matter from the main claim. The advantage of a Beddoe application is the potential costs protection. If ...
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- Beneficiaries
  
  Claims by a beneficiary A beneficiary who believes there is a problem with the will, such as a contention that the deceased did not have capacity when the will was made, should be advised by the estate’s legal adviser to seek independent advice.
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- Benjamin orders
  
  See Presumption of death below.
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- Bequests
  
  A bequest is a gift or legacy under a will. See also Gifts to charities below.
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- Bona vacantia
  
  This means vacant goods and is the name given to ownerless property which ultimately passes to the Crown, except in Lancaster and Cornwall where they vest in the Duchy of Lancaster and the Duchy of Cornwall, respectively. The Treasury Solicitor deals with bona vacantia that pass to the Crown. Bona ...
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- Burials, cremations and funerals
  
  Funeral wishes It is quite common for a will to include directions as to how the testator wishes their remains to be disposed of, or even their detailed wishes for the conduct of a funeral service.
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- Capacity
  
  Challenges to a will because the testator lacked capacity are rarely successful. The authoritative case on capacity is Banks v Goodfellow (1870) LR 5 QB 549, which stated:
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- Caveats
  
  A caveat is a written notice given by someone known as the caveator to ensure that a grant is not issued in a deceased person's estate without the caveator being notified. Rule 44 of The Non-Contentious Probate Rules 1987 governs the procedure for entering a caveat and the stages that follow ...
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- Codicils
  
  A codicil is a document that amends, rather than replaces, a previously executed will. The will and codicil are read together to determine the terms of the will. If the testator has made a codicil or codicils they are included in the application for the grant of representation alongside the will.
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- Co-executors – Authority to act
  
  The office of a sole executor is regarded as being an individual. However, in circumstances where the will appoints more than one executor that appointment will be jointly held between them to act alone and bind the estate only with the consent of the remaining appointed executors.
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- Contested will matters
  
  An interested person can oppose an application for a grant of probate or letters of administration by seeking to impugn the will which is the subject of the application. There are standard grounds for challenging a will:
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- Construction of the will
  
  A question may arise as to whether the specific gift remains in existence at the date of the testator’s death. For example, if property is sold that was the subject of the specific gift, should the sale proceeds still go to the named beneficiary to satisfy the specific bequest? In such a scenario ...
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- Contracts entered into or completed before probate or administration is granted
  
  Ability of executor to intermeddle In some circumstances it may be advantageous for the estate if a contract is entered into before the formal grant of representation is obtained. A personal representative may elect to do so, which would constitute intermeddling with estate assets and is perfectly ...
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- Death
  
  Causes of action survive death The general rule is that death does not affect the legal rights and obligations of the deceased.
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- Death of joint executor
  
  If one executor dies before a grant is made the surviving executor can and should proceed unless the will says otherwise. Once appointed as legal personal representative an executor will undertake executorial duties in the first instance and then, if the will creates a trust, will be a trustee. If ...
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- Death of single executor
  
  If the testator has made no provision in the will for an alternate or substitute executor and the executor named in the will dies before a grant of probate is obtained, the position is the same as if no executor had been appointed. A beneficiary can then apply for a grant of letters of ...
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- Delegation by executor
  
  An executor may commonly delegate administrative functions relating to the administration of an estate. For example, the executor may appoint a legal adviser to represent the estate and appoint accountants to assist in the administration. Under r 31 of The Non-Contentious Probate Rules 1987 an ...
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- Executors
  
  Where a will appoints an executor they have the greatest entitlement to apply for a grant of probate under the order of priority set out in r 20 of The Non-Contentious Probate Rules 1987.
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- Genealogists
  
  A genealogist is a person or organisation whose aim is to hunt through government records for names of people who have died intestate with no obvious living relatives. There is a 12-year time limit before the Crown (or the Duchies of Cornwall and Lancaster) can claim the estate as their own. ...
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- Gifts to charities
  
  Clauses making bequests to charities often try to specify how it is to be used. However most charities prefer a general legacy that allows them discretion as to how the gift is applied according to their operational requirements. In practical terms once such a bequest is paid to the charity it is ...
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- Grants
  
  There are three main types of grant of representation:
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- Hotchpot
  
  A hotchpot clause is used in wills and trusts to ensure fairness and equality between the beneficiaries by taking into account any amounts already received through lifetime gifts or loans. When combined with the gifts received under the will all beneficiaries end up with the same benefit. The ...
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- Insolvent Estates
  
  Section 421(4) of the Insolvency Act 1986 defines the estate of a deceased person as insolvent ‘if, when realised, it will be insufficient to meet in full all the debts and liabilities to which it is subject’. Estate liabilities include conditional and future obligations.
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- Intermeddling
  
  The term intermeddling is used to describe normal actions taken in relation to an estate. By carrying out these actions an individual implies their acceptance of the role of personal representative. This is acceptable where the individual is entitled to the role, but by intermeddling without ...
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- Intestacy
  
  An intestate is a person who dies and does not leave a wholly valid will.
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- Joint mortgage responsibilities
  
  Although upon the death of a joint proprietor the proprietary interest is lost to the surviving joint tenants together with the obligation to contribute to the mortgage, the estate may remain liable under any personal covenants of a mortgage.
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- Joint ownership
  
  See also Assets – Joint ownership of assets above. Co-ownership of the legal title in a property is always on the basis of a joint tenancy. The legal title is also referred to as the legal estate or interest. Legal owners hold property on trust for the beneficial owners.
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- Larke v Nugus letters
  
  The case of Larke v Nugus [2000] WTLR 1033 concerned a request for information about the circumstances surrounding the making of a will. It was held that the practitioner involved with the drawing up and execution of the will should assist by providing details. Requests of this type are often made ...
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- Letters of administration
  
  See Application for a grant of probate or letters of administration above. See also Administrator, Distribution of intestate estate and Grants above.
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- Litigation
  
  One of the duties of the personal representatives of an estate is to manage and, if possible, compromise any claims against the estate. That can be an onerous duty involving a challenging balancing exercise between the merits and likelihood of success of the claim on the one hand and the necessity ...
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- Missing will
  
  It is possible to obtain a grant for administration based only upon a copy of a missing will. When an original will or codicil is lost, destroyed or damaged without the intention of revoking it an application may be made for an order for leave to prove the will as contained in a copy, ...
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- Personal liability of the executor
  
  Until a personal representative has obtained a grant of representation or has elected to act they cannot be sued in that capacity. Being named as executor in a will is not sufficient. If individuals have not taken any action they must be given an opportunity to renounce before a claim can be ...
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- Property of the estate
  
  See Assets above.
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- Rectification of a will
  
  It is possible to apply for rectification of a will that fails to carry out the testator's intentions because of a clerical error or a failure to understand the testator's instructions. An application for rectification must be made within six months from the date of the grant of representation in ...
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- Renunciation as executor
  
  There is no compulsion upon someone to accept the role of executor or administrator. The named executor, or one of multiple named executors, may renounce their office before any application for a grant is made. A spouse or civil partner may renounce their right to be an administrator allowing a ...
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- Replacement or removal of an executor
  
  The court may exceptionally pass over an executor and make a grant of letters of administration with will annexed to another person under s 116 of the Senior Courts Act 1981. For an order to be made there must be exceptional circumstances that make it necessary or expedient to pass over the ...
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- Resignation of executor
  
  An executor may renounce the office before applying for a grant. See Renunciation as executor above.
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- Revocation
  
  See Application to revoke a grant of probate or letters of administration above.
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- Small estates
  
  Most banks and other financial institutions are willing to release funds from an account or deal with personal property without the need for a grant subject to their prescribed limits. As these limits differ between banks some estates with few assets may require a grant of representation in any ...
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Powers of attorney
- Generally
  
  Granting someone the power to act as an attorney means that the attorney can do anything that the donor can legally do on their behalf, provided they act in the donor’s best interest. It is common for a person to want or need to appoint another person to represent them, either generally or to ...
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- Capacity
  
  Challenges to a will because the testator lacked capacity are rarely successful. The authoritative case on capacity is Banks v Goodfellow (1870) LR 5 QB 549, which stated:
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- Corporations
  
  See Companies under General powers of attorney and Execution below.
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- Death
  
  Causes of action survive death The general rule is that death does not affect the legal rights and obligations of the deceased.
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- Delegation
  
  An attorney cannot appoint a substitute, sub-attorney or delegate unless the instrument creating the power expressly provides for an attorney to do so. A substitute attorney appointed by the donor may act during a vacancy of the specified attorney or a vacancy of a kind specified in the instrument ...
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- Directors
  
  See Companies under General powers of attorney below.
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- Disclaiming a power of attorney
  
  General powers of attorney The attorney can disclaim the authority given to them by a general power of attorney, including an irrevocable power, following which the attorney will be unable to exercise or join in the exercise of the power: s 156(1) of the Law of Property Act 1925. See ...
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- Enduring powers of attorney
  
  If an attorney disclaims their powers under an enduring power of attorney whether that revokes it entirely will depend upon whether the donor gave the attorney joint or joint and several powers to operate the enduring power of attorney. If the power is joint when one attorney disclaims this will ...
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- Execution
  
  General powers of attorney A general power of attorney must be granted by deed, s 1(1) of the Powers of Attorney Act 1971, and be validly executed as a deed by the donor of the power: s 1(2)(b) of the Law of Property (Miscellaneous Provisions) Act 1989.
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- Executor
  
  See Personal Representatives below.
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- General power of attorney
  
  A general, or ordinary, power of attorney is governed by the common law rules of agency and statutory guidelines within the Powers of Attorney Act 1971. A general power is used to authorise an attorney to deal with the donor's property and financial affairs, particularly in a commercial and ...
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- Insolvency
  
  See Revocation below.
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- Irrevocable power of attorney
  
  There are two main circumstances recognised by common law and statute in which an ordinary power of attorney will be incapable of revocation:
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- Joint attorneys
  
  If attorneys are appointed to act jointly then all the attorneys must sign documents or act together. If one attorney vacates office, as defined in s 5 of the Powers of Attorney Act 1971, then the power of attorney is terminated unless the document specifies otherwise and at least one attorney ...
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- Lasting powers of attorney
  
  An attorney can stop acting at any time. If the lasting power of attorney is registered the attorney must complete form LPA005 and send it to the Office of the Public Guardian. The attorney should inform any other attorneys and the donor that they are disclaiming their appointment. If the donor has ...
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- Limitations
  
  The authority given to attorneys under a lasting power of attorney is limited by the provisions of the Mental Capacity Act 2005, see Capacity above, and also any limitations specified by the donor in the lasting power of attorney itself.
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- Donor
  
  The person giving the power of attorney is known as the donor.
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- Registration
  
  Enduring powers of attorney Although lasting powers of attorney replaced enduring powers of attorney on 1 October 2007, those that were created before that date must be registered once the attorney believes the donor is, or is becoming, mentally incapable within the meaning of the Mental ...
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- Review
  
  If anyone suspects that an attorney is not performing their duties properly or is exploiting or abusing the donor, they should immediately contact the Office of the Public Guardian: Report a concern about an attorney, deputy or guardian. If anybody suspects that a criminal offence has been ...
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- Revocation
  
  See Application to revoke a grant of probate or letters of administration above.
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- Termination
  
  See Revocation above and also Termination of attorneys appointment under lasting powers of attorney above.
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- Trustees
  
  See Trustees below.
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Wills
- Generally
  
  Granting someone the power to act as an attorney means that the attorney can do anything that the donor can legally do on their behalf, provided they act in the donor’s best interest. It is common for a person to want or need to appoint another person to represent them, either generally or to ...
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- Administration
  
  Personal representatives administer an estate by collecting in the assets, paying the debts, and distributing the estate according to the will or the intestacy rules. Part III of the Administration of Estates Act 1925 sets out the principles for the administration of the assets.
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- Administrator
  
  Where there is no valid will r 22 of The Non-Contentious Probate Rules 1987 sets out who may act as the personal representative. The grant of letters of administration is the document that confers the authority to administer the estate. The personal representative is referred to as the ...
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- Alteration of a will
  
  Before the will is signed There is no requirement for the testator to initial amendments before executing the will itself, but there is a rebuttable presumption that the testator made any amendments to a will after execution.
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- Beneficiaries
  
  Claims by a beneficiary A beneficiary who believes there is a problem with the will, such as a contention that the deceased did not have capacity when the will was made, should be advised by the estate’s legal adviser to seek independent advice.
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- Burials, cremations and funerals
  
  Funeral wishes It is quite common for a will to include directions as to how the testator wishes their remains to be disposed of, or even their detailed wishes for the conduct of a funeral service.
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- Capacity
  
  Challenges to a will because the testator lacked capacity are rarely successful. The authoritative case on capacity is Banks v Goodfellow (1870) LR 5 QB 549, which stated:
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- Charities
  
  See Beneficiaries above.
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- Contracts to make wills
  
  See Mutual wills below.
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- Codicils
  
  A codicil is a document that amends, rather than replaces, a previously executed will. The will and codicil are read together to determine the terms of the will. If the testator has made a codicil or codicils they are included in the application for the grant of representation alongside the will.
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- Court made wills
  
  See Statutory wills below.
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- Disposition of estate property
  
  Disposition of land A general disposition of land in a will includes leasehold land, whether or not the testator also owns freehold land, unless a contrary intention appears in the will.
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- Divorce or annulment of marriage
  
  If the testator, having made a will while married, then divorces or has the marriage annulled, any appointment of the former spouse as an executor in the will is revoked, unless a contrary intention appears in the will: s 18 of the Wills Act 1837. Any gift to the former spouse is also revoked ...
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- Dual or multiple wills
  
  It is permissible to have more than one will. This may be where the testator has assets in two or more jurisdictions, typically in England or Wales and another country.
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- Execution
  
  General powers of attorney A general power of attorney must be granted by deed, s 1(1) of the Powers of Attorney Act 1971, and be validly executed as a deed by the donor of the power: s 1(2)(b) of the Law of Property (Miscellaneous Provisions) Act 1989.
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- Executor
  
  See Personal Representatives below.
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- Extrinsic evidence to construe will
  
  Section 21 of the Administration of Justice Act 1982 allows the admission of extrinsic evidence when construing a will, but only if at least one of the following applies:
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- Foreign wills
  
  See International wills below.
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- In contemplation of marriage
  
  If an individual who has made a will subsequently marries their will becomes void on marriage: s 18(1) of the Wills Act 1837. However, there is an exception to this general rule if it is clear that when making the will the testator was expecting to marry that person and intended that marriage ...
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- International wills
  
  The law that governs the validity and execution of a will where the testator’s background, estate assets or execution will have an international element is s 1 of the Wills Act 1963. The execution of the will is valid if it complies with the laws of any of the following:
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- Living wills – Advance decisions
  
  This document effectively refuses and controls treatment and end-of-life care for the donor of the power. Before the Mental Capacity Act 2005 came into force on 1 October 2007 such a document was called a living will or an advance directive.
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- Making a will
  
  A will is not valid unless it is in writing and duly witnessed. See Execution above. However, these provisions are overridden if a will is a statutory will. See Statutory wills below.
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- Minimum age of will maker
  
  Section 9 of the Wills Act 1837 provides that a testator must be at least 18 years of age for a will to be valid, unless they are a member of the armed forces on active duty. See Privileged wills below.
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- Mutual wills
  
  Mutual wills are made by two or more individuals who agree not to revoke them without the consent of the others. There is, in effect, a contract between the individuals not to revoke or alter the wills.
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- Privileged wills
  
  For a will to be privileged a member of the armed forces on active military service must complete it. Such wills do not have to meet the requirements of s 9 of the Wills Act 1837. See s 11 of the Wills Act 1837 and the Wills (Soldiers and Sailors) Act 1918.
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- Promises to make a will or a bequest
  
  Proprietary estoppel Under the doctrine of proprietary estoppel a claimant against an estate may be granted relief from the court if they can show:
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- Rectification of a will
  
  It is possible to apply for rectification of a will that fails to carry out the testator's intentions because of a clerical error or a failure to understand the testator's instructions. An application for rectification must be made within six months from the date of the grant of representation in ...
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- Revocation
  
  See Application to revoke a grant of probate or letters of administration above.
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- Solicitors
  
  As executor It is relatively common for solicitors to be appointed as executors or alternate executors in their client’s wills.
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- Statutory wills
  
  Under s 18(1)(i) of the Mental Capacity Act 2005 (the Act) the Court of Protection has the legal authority to make a statutory will for a person who does not have the relevant mental capacity within the meaning of s 2(1) of the Act to make a will for themselves. The statutory will that ...
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- Survivorship
  
  Assets Assets in joint ownership can either be held as joint tenants or as tenants in common.
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- Testamentary capacity
  
  See Capacity above.
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- Testator
  
  The term testator is a definition used in common law and statute to describe the person making a will and is the preferred term in the literature and the cases on wills and probate. Not surprisingly, the term testatrix, being the female version of testator, does not appear in statute.
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- Who can inspect the will of a deceased person?
  
  Only the executors are entitled to see the will of the testator. If probate is required to administer the estate, then once the will has been proved and a grant of representation issued by the probate registry the original will becomes a public record document.
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- Witnesses
  
  The testator must sign the will in the presence of at least 2 witnesses at the same time: s 9(c) of the Wills Act 1837. Case law indicates that visual presence is essential. The testator and the witnesses must be able to see each other.
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Wills and Lifetime Planning

This publication guides the practitioner through taking instructions and preparing wills, powers of attorney, and advance decisions.

Overview

Precedents in this publication include:

3 Matter Plans Included

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