Category: Will

Planning your estate is one of the most important steps you can take to protect your loved ones and ensure your wishes are carried out. One of the most effective tools for safeguarding your estate is a Will Trust.  It enables you to specify exactly how your assets should be managed and distributed after your death.

At Elizabeth Middleton Solicitors, we specialise in helping individuals and families use Wills to ring-fence their estates to minimise risk, avoid unnecessary costs such as care home fees or tax liabilities, and preserve your wealth for future generations.

1. What is a Will Trust?

A Will Trust is written into your Will and only comes into effect after your death. It enables you to specify how certain assets in your estate should be managed and who should benefit from them.

Unlike a standard Will, which typically distributes your assets directly to your chosen beneficiaries, a Will Trust provides an extra layer of control and protection. With this arrangement, your assets are placed into a Trust and managed by appointed Trustees. These Trustees are responsible for looking after the assets on behalf of your chosen beneficiaries, in line with the instructions you have set out in your Will.

Common Assets Placed into a Will Trust 

• Property, such as your family home
• Savings and cash assets
• Investments, including shares or bonds

Key Parties Involved in a Will Trust

• Testator – the person who creates the Will and sets up the trust
• Trustees – the individuals (or professionals) you appoint to manage the trust and its assets according to your wishes
• Beneficiaries – the people who will benefit from the trust, either through income, access to property, or eventually receiving the capital

2. Main Types of Will Trusts 

There is no one-size-fits-all when it comes to estate planning, which is why different types of Will Trusts exist to serve different purposes. These are the main types of Will Trusts commonly used in the UK:

Discretionary Trusts

A Discretionary Trust gives your chosen Trustees the power to decide how, when, and to whom the assets within the trust are distributed. This means the beneficiaries do not have an automatic right to any assets. Decisions are made based on their circumstances at the time.

This type of trust is particularly suitable for:

• Families with vulnerable or financially irresponsible beneficiaries.
• Situations where future needs are uncertain or may change over time.
• Parents or grandparents who wish to support children or grandchildren in a flexible and adaptable way.

Interest in Possession Trusts

An Interest in Possession Trust allows one person (known as the life tenant) to benefit from the income or use of an asset – typically a property – for the duration of their life. After their death, the asset passes to another beneficiary, often children from a previous relationship.

Bare Trusts

In a Bare Trust, the assets are held in the name of a trustee, but the beneficiary has an absolute right to the trust’s contents once they reach 18. Unlike other trusts, the trustees have no discretion. Once the child comes of age, they are entitled to take full control of the assets.

Property Protection Trusts

One of the most practical and widely used trusts in estate planning, a Property Protection Trust is designed to safeguard the family home, especially in the event a surviving spouse remarries or needs long-term care.

Typically used by couples who jointly own a property, the trust allows one partner’s share of the home to be ring-fenced for their children, even if the surviving partner continues living in the property.

Disabled or Vulnerable Beneficiary Trusts

If you have a child or loved one with a disability or long-term condition, a standard inheritance could unintentionally disrupt their access to means-tested benefits or public support. A Disabled or Vulnerable Beneficiary Trust allows you to provide for them financially while preserving their entitlement to state support.

3. Why Consider a Will Trust? 

By setting up a Will Trust, you ensure that your estate is managed responsibly, and that your legacy is protected and passed on exactly as you intended.

Ring-Fencing Your Estate

One of the most compelling reasons to consider a Will Trust is to ring-fence your estate. This means placing legal protections around your assets to stop them from being eroded by:

• Care home fees.
• Remarriage of a surviving spouse.
• Family disputes or divorce settlements.
• Creditors in the event of bankruptcy.

Control Over Asset Distribution

A Will Trust allows you to maintain greater control over how your estate is distributed. This is especially valuable if you have:

• Young children or grandchildren
• Beneficiaries with financial difficulties or poor money management
• Loved ones with disabilities or special needs

You can specify how much each beneficiary receives and when, helping protect them from making poor financial decisions or being exploited.

Tax Efficiency

Some types of Will Trusts may offer inheritance tax planning opportunities, helping to reduce the tax burden on your estate. Although trusts are subject to their own tax rules, they can be structured to manage liabilities more effectively, particularly in larger estates or where multiple generations are involved.

Flexibility for the Future

Life is unpredictable.  One of the strengths of a Will Trust, particularly a Discretionary Trust, is that it offers built-in flexibility. Your Trustees can respond to changing circumstances, such as a beneficiary losing employment, developing a health condition, or needing support at a later stage in life.

How Elizabeth Middleton Solicitors Can Help

At Elizabeth Middleton Solicitors, we specialise in Wills, Trusts and Estate Planning, offering expert guidance tailored to your unique circumstances. We take the time to explain your options with professionalism and compassion so you can make informed decisions with confidence.

Contact us today and let us help you put your affairs in order and secure your legacy.

Contesting a Will in England and Wales is a complex legal process that requires a clear understanding of the valid grounds on which such a challenge can be made. It is not simply a matter of dissatisfaction with the contents of the Will. There needs to be a legitimate reason to contest its validity.

When assessing the validity of a Will, it is essential to establish if there is a prior legally binding Will in place. If no previous Will exists, the estate will be distributed according to the intestacy rules, which may not reflect the deceased’s wishes. However, if an earlier, unchallenged Will is found, its terms will precede an invalid or successfully contested Will.

There are several ways that the validity of a Will can be challenged. However, it is not a decision to be taken lightly. It is important to consider whether a successful claim will yield a better result than the existing Will.  Research must be done before contesting a Will. This article outlines the most common grounds on which a Will can be contested in England and Wales.

1. Lack of Testamentary Capacity

For a Will to be valid, the testator (the person making the Will) must have the mental capacity to understand the implications of their decisions. The legal benchmark for this is derived from the case of Banks v Goodfellow [1870], which stipulates that the testator must:

• Understand the nature and effect of making a Will. This means they must know that they are making a Will and that the Will will take effect on their death.
• Comprehend the extent of their property and assets. The person must have a rough idea of the value of their estate and what is in it.
• Recognise the claims to which they ought to give effect. For example, if the deceased is married, they must know they must provide for the spouse.  In addition, if they have children who are under 18, their needs must be addressed.
• Not be affected by any disorder of the mind that influences their decisions.  The person must be of sound mind. If there are concerns about the testator’s mental capacity, such as cognitive impairments, at the time the Will was executed, this can serve as a basis for contesting the Will.

2. Lack of Valid Execution

The execution of a Will must adhere strictly to the formalities outlined in the Wills Act 1837. For a Will to be valid, it must be:

• In writing.
• Signed by the testator or by another individual in their presence and at their direction.
• The signature must be made or acknowledged in the presence of at least two witnesses present at the same time.
• Each witness must either attest to and sign the Will in the presence of the testator.

Failure to comply with these requirements can render a Will invalid.

3. Lack of Knowledge and Approval

Even if a Will appears to be validly executed, it is essential that the testator knew and approved of its contents. A Will can be contested if it is believed that the testator was unaware of or did not understand the provisions within the document, especially in situations involving suspicious circumstances, such as substantial gifts to individuals involved in the preparation of the Will.

4. Undue Influence or Coercion

A Will must reflect the free and voluntary intentions of the testator. If it can be demonstrated that the testator was subjected to undue influence, coercion, or pressure by another party, leading them to make decisions they otherwise would not have made, the Will can be challenged. Proving undue influence requires substantial evidence, as the courts require a high standard of proof to overturn a Will on this basis.

5. Fraud or Forgery

Allegations that a Will has been forged or that the testator was deceived into including certain provisions can form the basis of a challenge. For example, if the testator’s signature was forged or if they were misled about the contents of the Will, it can be contested on the grounds of fraud.

6. Rectification and Construction Claims

If a Will fails to carry out the testator’s intentions due to a clerical error or a misunderstanding of their instructions, a claim for rectification can be made under Section 20 of the Administration of Justice Act 1982. This allows the court to rectify the Will to reflect the testator’s true intentions.

7. Inadequate Financial Provision

Under the Inheritance (Provision for Family and Dependants) Act 1975, certain individuals, such as spouses, civil partners, children, or dependants, can challenge a Will if it does not make reasonable financial provision for them. The court considers various factors, including the applicant’s financial needs and resources, the size of the estate, and any obligations the deceased had toward the applicant.

What is the Procedure for Contesting a Will?

Challenging a Will involves several steps:

1. Seek Legal Advice — Consulting with a solicitor experienced in contentious probate is crucial to assess the claim’s validity and navigate the complex legal landscape.
2. Lodge a Caveat — To prevent the grant of probate while the dispute is ongoing, a caveat can be entered at the Probate Registry. This is a temporary measure that halts the administration of the estate.
3. Gather Evidence — Collecting pertinent evidence, such as medical records, witness statements, and expert opinions, is essential to support the grounds for contesting the Will.
4. Mediation — Before proceeding to court, parties are encouraged to resolve disputes through mediation or alternative dispute resolution methods to avoid lengthy and costly litigation.
5. Initiate Legal Proceedings — If mediation fails, formal legal proceedings can be commenced in the appropriate court. It is important to note that strict time limits may apply, especially for claims under the Inheritance Act 1975, which must typically be made within six months of the grant of probate.

Let Elizabeth Middleton Solicitors Help You

Contesting a Will is a serious legal matter that should not be undertaken without careful consideration. It is crucial to seek professional advice and fully understand the potential consequences. 

At Elizabeth Middleton Solicitors, we provide expert guidance whether you need advice on the validity of a Will, representation in a legal challenge, or assistance in ensuring your own Will is correctly drafted and executed.

Contact us today, and let us help you navigate your legal matters with confidence. 

For many of us, January represents a fresh start – a time to reflect, set new goals, and take meaningful steps to prepare for the future. After the holiday rush and festivities, it is the perfect month to focus on important personal matters that often get sidelined during the busier times of the year. Among these is the crucial task of discussing and planning your Will.

In this blog, we will explore why January provides the ideal moment to address this important topic and offer practical tips on how to approach it with confidence and care.

A Time for Fresh Starts and Resolutions

As the New Year begins, many of us set resolutions aimed at improving our lives – whether that is getting healthier, achieving personal goals or organising our affairs. This makes January an excellent time to think about future planning, including writing or updating your Will.

Unlike the holiday season, January offers a quieter, less chaotic atmosphere, allowing you to focus on decisions that bring long-term peace of mind. Starting the year with such an important task ensures you are prioritising your family’s security and your legacy.

Moving Beyond the Holiday Rush

The festive season is filled with family gatherings, celebrations, and distractions, which may not be the best backdrop for serious conversations. Once January rolls around, families have returned to their routines, creating an opportunity to have focused discussions without interruptions. This allows for more thoughtful planning, making it easier to ensure that your Will reflects your true intentions.

Removing the Taboo Around Wills

The idea of discussing Wills can feel uncomfortable for many, but it doesn’t have to be. Far from being a sombre or difficult topic, talking about your Will is a practical way to plan for the future. By removing the stigma and approaching the subject openly, you can turn it into a conversation about ensuring the best for your family.

Talking About Wills: A Responsible Choice

Discussing your Will isn’t a morbid topic – it is a responsible and thoughtful step towards securing your family’s future. Far from being a conversation to shy away from, planning your estate ensures that your wishes are honoured and your loved ones are protected.

Framing the Conversation as an Act of Love

By clearly expressing your wishes, you can spare your family unnecessary stress and uncertainty in the future. The start of a new year provides an ideal opportunity to approach this conversation in a caring and supportive way.

Preventing Future Disputes

Openly discussing your Will can prevent misunderstandings and potential disputes among family members down the line. Being transparent now can help protect your loved ones from future emotional and financial challenges, ensuring your wishes are honoured. 

5 Key Elements to Consider When Writing Your Will

When writing or updating your Will, careful planning ensures your wishes are clearly expressed and your loved ones are protected. This helps prevent complications and makes the process smoother for everyone.

Here are some important elements to think about:

1. Be Specific About Your Assets

Make sure all your assets, including property, sentimental items and your pets, are planned for. Being precise helps ensure that everything is distributed as you intend and avoids potential conflicts.

2. Appointing Executors

Choose someone you trust to carry out your wishes. Your Executor will be responsible for managing your estate, so it’s essential to select someone reliable and capable of handling this responsibility.

5. Arranging Your Affairs

It is equally important to plan for situations where you may be unable to make decisions yourself. Establishing a Lasting Power of Attorney (LPA) ensures that a trusted person can manage your personal, financial and medical affairs.

3. Guardianship for Children

If you have young children, appointing a guardian is crucial. This ensures they will be cared for by someone you trust, providing security and peace of mind for the future.

4. Charitable Giving

Including charitable donations in your Will to causes that are meaningful to you allows your legacy to make a positive impact beyond your immediate family.

Make a Will That is Right for You

Having a Will is crucial to ensure your assets are distributed according to your wishes. Without one, the rules of intestacy will dictate how your estate is divided.  This can result in unintended consequences and potential friction among family members. 

Here’s an overview of different types of wills and considerations to ensure your will meets your needs:

Standard Wills

A standard Will is suitable for individuals with straightforward circumstances. It ensures your estate is distributed as per your wishes, provides instructions for the care of dependents, and can include charitable donations. Regular updates are essential to keep it relevant to changes in your life.

Life Interest Wills

Life interest Wills protect assets for future beneficiaries while allowing someone, such as a spouse, to benefit during their lifetime. For example, it can ring-fence half the value of a home to ensure it passes to children, even if the surviving spouse requires long-term care. This approach safeguards a portion of your estate from being used for care home fees.

Mirror Wills

Typically used by married or cohabiting couples, mirror Wills are almost identical documents that reflect each other’s wishes. These are a practical choice for couples wanting to leave their estates to each other and, subsequently, to children or other beneficiaries.

Wills for Unmarried or Cohabiting Couples

Having a Will is vital for unmarried couples as your partner has no automatic legal right to your estate under intestacy laws. By naming your partner as a beneficiary, you ensure they are protected and provided for regardless of how long you have lived together.

Wills with Tax Planning

If your estate exceeds the inheritance tax threshold (£325,000 for individuals or up to £1,000,000 for married couples with children), strategic planning can help minimise the tax burden on your beneficiaries. An experienced solicitor can advise on transferable nil rate band allowances and efficient estate planning to reduce inheritance tax liabilities and maximise what you pass on.

Wills for Significant Life Events

 It is crucial to create or update your Will following significant life changes, such as:

• Marriage or Remarriage — Any existing Will becomes invalid upon marriage or remarriage, so a new one is essential.
• The Birth of a Child — Ensure that guardians are included for to make sure that they are looked after if they are under 18.
• Divorce — Review your Will to reflect any changes in beneficiaries.
• Purchasing a Home — If you die and you own property, a Grant of Probate is required to pass it to your family.  If you have a mortgage, a Grant of Probate to give your Executors authority to speak to the bank to let them know that you will pay the mortgage as soon as the property is sold.  If you do not have a Will, you do not get authority until a Grant of Representation is obtained.  This can take more than a year in some cases which means that interest will continue to accrue on the mortgage which reduces the inheritance that your beneficiaries will receive.
• Starting a Business — Include your business assets to ensure continuity.

Why Seek Professional Guidance for Your Will

Writing a Will is one of the most important steps you can take to ensure your wishes are carried out and your loved ones are protected after you die. 

While many people opt to create online or DIY wills or Wills drafted by unqualified Will Writers. It is important to understand the risks involved.  An example that Elizabeth Middleton Solicitors has seen in practice is an unnecessarily complicated discretionary Will when life interest Wills would have been a better option.   A qualified Solicitor will give you bespoke  advice to reflect your estate.

Here are some key benefits of using a solicitor for your Will writing:

1. Personalised Advice

Every family and estate is unique. A trusted solicitor can provide tailored advice based on your specific circumstances, ensuring that your Will reflects your wishes accurately, accounts for all your assets and meets the needs of your loved ones.

2. Legal Expertise

Wills are legal documents that must meet certain requirements to be valid. Mistakes in DIY or online wills, such as incorrect wording, lack of proper witnessing, or failure to account for specific laws, can render the document invalid. A solicitor ensures your will complies fully with the law in England and Wales, reducing the risk of disputes or complications later.

3. Complex Family Situations

If your family situation is more complex – for example, if you have stepchildren, dependents with additional needs, or estranged relatives – professional advice is invaluable. A solicitor can help you understand the complexities and create a Will that meets your unique requirements.

4. Minimising Tax Implications

An experienced solicitor will provide guidance on inheritance tax planning, helping you reduce the tax burden on your estate wherever possible. They can advise on exemptions, allowances and strategies that maximise the benefit for your loved ones.

5. Ongoing Support

Circumstances change over time -whether it’s marriage, the birth of a child, divorce, purchasing a new property or starting a new business. A solicitor can offer ongoing support to review and update your Will as your life evolves, ensuring it remains relevant and effective.

Whether you are making your first Will or updating an existing one, a solicitor’s expertise makes the process more straightforward and stress-free, providing long-lasting security for you and your family.

Choose Elizabeth Middleton Solicitors 

At Elizabeth Middleton Solicitors, we provide the legal expertise you need to plan for your future and protect your assets. We understand that every family is unique, and our friendly, approachable team works with you to create Wills, lasting powers of attorney, and comprehensive tax and estate plans tailored to your circumstances. 

We also offer trusted and compassionate probate services, supporting you through the often complex process of settling a loved one’s affairs with care and efficiency. Additionally, we can assist with equity release, helping you access funds tied up in your home without the need to move and ensuring the process aligns with your financial goals and plans.

Start the Year With Peace of Mind

January is the perfect time to prioritise your future and that of your loved ones. By addressing your Will now, you set the tone for the year ahead with good intentions and thoughtful planning. Make this January the month you take control of your future. 

Contact us today to discuss how we can help you create a Will that provides security, clarity and peace of mind for you and those you love.

Everyone knows the importance of having a Will to ensure that your final wishes are carried out. A Discretionary Trust is a great option to ensure all this takes place.

What is a Discretionary Trust?

A Trust is a legal agreement that names a third party, referred to as the Trustees, who will hold assets on behalf of others, known as beneficiaries. Assets can include property, land, money, shares, and investments.

A Discretionary Trust is a special type of Trust that gives Trustees discretion as to choose which beneficiary will benefit at any given time. 

Typically, a Discretionary Trust is set up with a schedule for the Trustee to follow when distributing funds. It will also likely state how much is to be distributed.  Any distributions are left to the discretion of the Trustee. 

Advantages of a Discretionary Trust

Here are some advantages of establishing a Discretionary Trust.

• You can set guidelines. You, the Settlor, can direct who you want your assets to go to.

• Avoid probate. The significant advantage of a Trust is that you can avoid probate if it is a lifetime Trust. 

• Flexibility. A Discretionary Trust allows Trustees to make distributions according to the needs of your beneficiaries.

Disadvantages of a Discretionary Trust

There are also some potential disadvantages of using a Discretionary Trust.

• You have no control after you’ve passed. While you can set guidelines in a Discretionary Trust, the ultimate decision on how and when your assets are distributed is at the Trustee’s sole discretion.
• Cost There are ongoing fees for professional advisors, out-of-pocket expenses incurred by Trustees, and taxes, so it can be expensive to run.
• Family disputes. Sometimes, beneficiaries may feel resentful and feel as though they haven’t been left anything outright. This could lead to claims against your estate.
• Immense responsibility. A Discretionary Trust can be an immense administrative and emotional responsibility because of the continuous need to keep records, submit tax returns, and navigate relationships with beneficiaries.
• Potentially losing the residence nil rate band. If your estate is taxable and the residue was left in a Trust rather directly to descendants, you lose the residence nil rate band, and a substantial amount of inheritance tax will be payable unless the Trustee takes the appropriate advice about appointing property out of the Trust in the first two years after you die.

Set up your Discretionary Trust with Elizabeth Middleton Solicitors

There are numerous factors to consider when determining whether you should set up a Discretionary Trust in your Will. A Discretionary Trust can be a lot of responsibility for the Trustees, so it’s imperative to strongly consider who you appoint as a Trustee. While it’s possible that there could be some relatives who are upset about not being entitled to money from the estate, a Discretionary Trust provides flexibility that can be helpful for future circumstances.

If you need help determining if a Discretionary Trust is right for you, let the experts at Elizabeth Middleton Solicitors help. Our team will help you plan for the future and help solve legal problems with professionalism, compassion, expertise, and kindness.

Contact us today to schedule a consultation.

When you make a Will, you do so to ensure that your final wishes are carried out after your passing and to ensure that there are no misunderstandings when your estate is distributed. And you don’t want to think that disagreements would arise after your death leading your friends or loved ones to contest your Will, but it does happen.

People contest Wills for many reasons. Some are legitimate reasons, while others are fueled by the intense emotions that show themselves during the grieving process. 

Regardless of their motives, there are steps that you can take to prevent your Will from being contested. This article will discuss things you can do to lessen the chance of someone contesting your Will.

Have a Qualified Solicitor Draft Your Will

Many people don’t realise that you aren’t required to have legal knowledge to make a Will. And while you can write your Will on your own, enlisting the services of a qualified solicitor to draft your Will can ensure that the document is written properly and is considered a valid legal document. 

The Wills Act of 1837 sets forth the requirements of a valid Will. If your Will isn’t considered valid when you die, your estate will be distributed according to Intestacy Rules, which in turn could lead to people inheriting part or all of your estate that you don’t want it going to.

A solicitor will know the requirements necessary to make a Will valid. They can ensure that your Will includes all the required information to eliminate the possibility of it being invalid.

Consider Your Mental Capacity

If someone believes you lacked the mental capacity to make your Will to begin with, they may contest it. To avoid this, you can arrange for a ‘capacity assessment’. This assessment will determine if you were of sound mind when making your Will and communicate that you did understand what you did when writing your Will and the consequences of your actions.

Another step you can take to ensure that your capacity won’t be in question is to request that your doctor witness your Will. In doing so, if someone were to contest your Will based on capacity, your doctor can testify that you were, in fact, of sound mind when signing your Will.

Avoid a Challenge Because of Undue Influence

Another common reason someone contests a Will is that they believe the testator made the Will because of undue influence, or they were coerced into leaving someone out of it or drafting it the way they did.

When you turn to a solicitor to prepare your Will, you typically meet with them alone to discuss the provisions of your Will. They will also confirm that you agree with the provisions and that they are genuinely your wishes.

If your Will is later contested, your solicitor will be contacted and asked to confirm that the testator themselves made the Will. They will also be asked if anyone who stood to gain anything from their estate was present during their appointment. Having that unbiased third-party attesting to your actions will make it difficult for someone to successfully contest your Will on those grounds.

Include a Letter of Wishes

A Letter of Wishes is a document that accompanies your Will. The Letter of Wishes can include information such as details of your funeral, who you want to inherit small, personal possessions, and can explain why you may have left someone out of your Will. Although it is not a legal document, it can help eliminate the chance of someone challenging your Will.

Keep Your Will Updated

One of the most common reasons a Will is contested is that it hasn’t been updated adequately. When your life circumstances change, you must also update your Will. Some events that should prompt you to update your Will include:

• Marriage
• Divorce
• Remarriage
• Having children
• The death of a beneficiary or executor
• A substantial increase or decrease in assets
• Moving

Updating your Will or making a new Will when your situation changes is an easy way to help prevent upsetting friends and loved ones after your death.

Let Elizabeth Middleton Solicitors Help You Protect Your Legacy

Although there is no way to guarantee that your Will will be challenged, utilising some of the suggestions in this article can help reduce that chance. If you are concerned that your Will could be contested or have any other questions, Elizabeth Middleton Solicitors is here to help.

Our team has been advising clients on estate planning matters for over a decade. We will listen to your needs and provide expert advice on your situation. We offer a comfortable environment and provide empathy, understanding, expertise, and professional care to help you plan for the future.

Contact us today for a consultation in our office in Winnersh Triangle or in the comfort of your own home.

Losing a loved one can be a very stressful and emotional time. You want to ensure that their last wishes are followed through with and the way to do that is through their Will. However, it can be difficult to locate if they haven’t communicated to you where they kept their Will. If you believe your loved one has written a Will, it’s essential to find it.

Locating their Will is necessary, as it states who inherits the assets in the estate and who is responsible for administering the Will. We’ll discuss why it’s important to locate their Will, ideas on how to locate their Will, and what happens if you cannot.

The Importance of Finding Someone’s Last Will

It’s essential to find a person’s Will because if you cannot find one, the estate may be distributed incorrectly. Secondly, the original Will is needed to apply for the Grant of Probate for the estate. A Grant of Probate gives authority to the Executor to deal with the estate’s assets for example closing any accounts opened in the deceased’s name, selling their property, shares and other assets.

If a Will is not located, it will be assumed that either a Will was never written, a later Will exists, or it was destroyed by the testator (the person who wrote it), and the estate will be deemed intestate. When this happens, the estate is distributed using “intestacy rules”.

Where to Look for a Will

Here are some ideas on locating someone’s Will.

#1. Search Their Home

One of the most common places people keep their Will is in their home. If they’ve made a Will, they will typically keep it among their possessions. If there is a safe or a fireproof box, that would be a great place to check.

#2. Talk to Friends and Family

Have a conversation with the family and friends of the deceased. Even if you weren’t told where the Will is, there’s a chance the testator may have spoken to someone else about its whereabouts.

#3. Contact Their Solicitor

It’s common for one to seek the assistance of a solicitor to write their Will, which means their solicitor may be storing it for them. If you’re unsure which solicitor the deceased may have used, start by contacting solicitors in the deceased home town

#4. Speak to Other Advisors They May Have Had

It’s possible that the deceased sought the assistance of other professional advisors like tax advisers, financial advisors, or accountants. They may know of the location of the Will.

#5. Check With Their Bank

People will sometimes keep their Wills and other important documents in safe deposit boxes at their bank. If you know where the deceased banked, it can be worth checking with them to see if the Will is being kept there.

#6. Contact the Principal Probate Registry

The Principal Registry of the Family Division, part of the High Court, is a place where Wills are stored. You can check to see if a Will is stored with them by writing to them.

#7. Enlist the Help of a Will Search Company

There are companies out there who will do a Will search on your behalf for a fee. They search solicitors, Will writers, and commercial Will registers. Certainty.co.uk will help anyone searching for a Will.  There is a fee payable for the search.

What to do After You’ve Found the Will

After you find the Will, you will have to make sure it’s valid. Below are some questions you should ask yourself while reviewing the Will. If you have any questions or concerns, contact a qualified solicitor.

• Was the Will signed by the deceased in the presence of two witnesses?
• Are there handwritten amendments on the document?
• Are all pages accounted for?

If the Will is valid, the executors can begin administering the Will.

What to do if you can not find the Will

Contact the Solicitor or Will Drafter who drafted the Will.  

• Ask them whether they took a copy of the executed Will.
• They will need to make an affidavit stating that they drafted the Will to enable the copy that they have to be proved.

Still Have Questions? Elizabeth Middleton Solicitors Can Help

At Elizabeth Middleton Solicitors, we understand that you’re going through a very emotional time and being unable to locate your loved one’s Will can worsen matters.   We also know that the intestacy probate process is complex which is why we are here to help. Our team has over a decade of experience in Wills and Probate. We’ve been through the probate process many times and can foresee any possible difficulties so that we can resolve them before they arise.

Contact us today to schedule a consultation.

The death of a close friend or a loved one can be a very difficult time for all involved. Unfortunately, things can get even more challenging when it comes to the deceased’s Will, especially if someone who has been left out of the Will believes they should receive something from the estate. If this happens, they will likely consider contesting the Will.

As with any legal dispute, contesting a Will can be expensive. Knowing and understanding the costs of contesting a Will can determine whether or not you move forward with legal action.

Costs of Contesting a Will

It can be difficult to pinpoint the exact cost of contesting a Will as many factors can affect the amount of legal fees. These can include:

• How many parties are involved
• The number of witnesses that will be called
• If expert evidence is required
• The complexity of the legal issues
• If court proceedings have to be issued
• How strongly the case has to be defended
• If the case goes to a contested trial

The more straightforward the case is, the lower the cost will be. And if you can settle out of court, you can reduce the costs even more. Usually, costs can range from between ten pounds, all the way up to a couple hundred thousand pounds.

Keep in mind that the majority of the legal costs will accrue in the early stages of the process. This is because a significant part of the work occurs at the beginning of the process.

Costs can also vary depending on the type of legal action that you are taking. A claim made under the Inheritance (Provision for Family and Dependants) Act of 1975 could be less expensive than if you contest the validity of a Will.

Who Pays the Costs of Contesting a Will?

Typically, if you win your case, your costs are paid for by the estate. Meaning if you lose, you pay the winner’s costs.  It is important to remember that costs are always subject to the discretion of the Court. When the Court hears cases, especially ones involving family disputes, they will consider the conduct of all involved parties very carefully before deciding who is ultimately responsible for the costs.

Payment Options When Contesting a Will

Different payment options may be available to help you manage the cost of contesting a Will. While these are common options, they may differ depending on the solicitor you choose and their payment options.

• Interim billing — Your solicitor will issue monthly invoices for their service.
• Fixed fee — Some solicitors will provide you with a quote laying out all fees for their services. This is a fixed amount, so even if the case takes longer than expected, you will not be required to pay more than the agreed-upon fee.

Contesting a Will Outside of Court

Settling a dispute outside of court can be effective if the executor, other beneficiaries, and the deceased’s immediate family are open-minded about resolving the conflict. Most of the time, people are willing to choose a path that doesn’t lead to a courtroom.

Mediation is a way to avoid litigation.  Costs are far less than going to court and it can help retain amicable relationships with all parties.

Trust the Experts at Elizabeth Middleton Solicitors When Contesting a Will

It’s important to remember that there isn’t only a monetary loss when contesting a Will. You also risk damaging personal relationships and negatively impacting your mental well-being. However, if you have carefully considered the potential ramifications of contesting a Will and choose to move forward, enlisting the services of a qualified, experienced solicitor is essential.

At Elizabeth Middleton Solicitors, we know that this is a difficult time for you, and we will listen to you and approach your case with empathy and understanding. We have been serving clients for over a decade, so you can rest assured you will receive expert legal advice on your situation.

Contact us today to schedule a consultation.

A Statutory Will is made on behalf of someone who has been deemed unable to create or update a Will themselves because they lack mental capacity. The Will is made and approved by the Court of Protection which is given the authority to do so based on the Mental Capacity Act 2005.

In order to determine whether a person has lost capacity, there are specific questions that must be answered.

• Do they understand the information relevant to the decision?
• Are they able to retain this information, even for a short time?
• Can they use that information as part of the decision-making process?
• Are they able to communicate their decisions?

It’s important to remember that a person can lack the mental capacity to make certain decisions but be to make simple ones. 

A Statutory Will has the same effect as if the person who did not lack mental capacity made and executed the Will themselves.

Applying for a Statutory Will

One must apply for a Statutory Will with the Court of Protection. This is the only court that can deal with Statutory Wills, as it was set up to oversee the interests of those who cannot make critical decisions for themselves. The application can be challenging, so using the services of a solicitor with experience in dealing with the Court of Protection is recommended.

Anyone can apply for a Statutory Will after receiving permission from the Court of Protection. Certain people are not required to get the court’s permission before applying. These people include:

• Court-appointed deputies
• Public guardians
• Attorneys under an EPA or LPA
• Someone who, either through an existing Will or intestacy laws, would be entitled to property (i.e. a spouse)

The person who applied for the Will must sign two copies of the Will on behalf of the person who has lost mental capacity. There must be two witnesses over the age of 18 present when the Will is signed.  Their signature is also required.

The Application

When you apply for a Statutory Will, you will be required to provide some or all of the following documents:

• A statement describing why you think the Statutory Will is required
• An “Assessment of Capacity” form (Form COP3)
• If applicable, a copy of the current Will with all amendments/codicils
• Information about the proposed Executors, as well as their agreement to fulfill the role of Executor
• Information about beneficiaries and the reason they should be included in the new Will
• Deputyship orders, if applicable
• Any LPA (Lasting Power of Attorney) or EPA (Enduring Power of Attorney)
• Details on inheritance tax that could arise because of the Statutory Will
• The following details about the person for who the Statutory Will is proposed:
  • Proof that they reside in England or Wales
  • Family details
  • Assets, debts, and income
  • Current and future needs
  • Residence and costs
  • Their medical condition
  • Their life expectancy

Costs

Check the Court of Protection website for the current application fee.  If there is a hearing, there will be an additional fee.  You will also be required to pay solicitor’s and counsel’s fees if applicable.

After you have filed the Application, what’s Next?

After the Court of Protection receives your application, they will issue a “Directions Order,” which will advise you on what will happen next.

For example, the directions might advise you to notify the solicitor representing the person who cannot make decisions for themself, anyone named in an existing Will, or anyone who may benefit if a person died intestate about the application.

If the involved parties can’t agree on the proposed terms of the Will, there may be a Court Hearing. If this happens, the Court will appoint the Official Solicitor to represent the person who lacks capacity. If no one objects to the proposal, it typically takes about six months to get the Statutory Will.

Trust Elizabeth Middleton Solicitors for All Your Estate Planning Needs

A Statutory Will can be helpful. Still, it isn’t ideal for every situation. To ensure you are making the best decision for your circumstances, enlisting the assistance of a knowledgeable solicitor is essential.

At Elizabeth Middleton Solicitors, we can help you plan for the future and solve legal problems with professionalism, expertise, compassion, and kindness. We know that you want to ensure that your family is protected after you pass away, and we want to help ensure that your last wishes are fulfilled.

Contact us today to schedule a consultation in our private office in Winnersh Triangle or in the comfort of your own home.