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Why it is important to seek professional advice when making a Will and to keep your Will under regular review

In a recent case, which came before the Courts, Mrs Gill left all of her estate when she died to the RSPCA and made no provision by her Will for her only daughter.

After Mrs Gill’s death, the Court set aside the provisions of the Will - one of the grounds being that Mrs Gill had been pressurised into making a Will in favour of the RSPCA against her wishes by her late husband.

It is therefore always safest to take professional advice when making a Will and to keep your Will under regular review. If your Will were to be challenged after your death, significant legal costs may be incurred, which could be deducted from the value of your estate - thus reducing the value of your estate for those whom you wish to benefit.

In another case which came before the Courts, a Will was held to be invalid when the deceased entered into a registered civil partnership after making his Will. This is because it is a general rule of law that if a person makes a Will and then enters into a registered civil partnership or marries, the Will would be revoked unless the Will incorporates some very specific wording. Unfortunately the Will in the case which came before the Courts did not incorporate the correct form of wording and the Will was therefore found to be invalid.

It is therefore crucial to take independent professional advice if your circumstances change - if for example,

• you were to marry or enter into a registered civil partnership or;
• if you were to become divorced or;
• if children / grandchildren were to be born or;
• if you disposed of an asset (such as a house) which you had specifically included as a gift in your Will or;
• if a relative or other person in your Will were to die before you

If your Will is kept under regular review and if you receive proper professional advice when you make or change your Will, this could reduce the possibility of a claim or challenge being made against your estate after your death and thus minimise potential legal costs, which could otherwise arise if such a claim or challenge were to be made.

If you would like any further advice or assistance regarding your Will, please contact Margaret Gale, Roger Crouch or Frances Hemus in our Private Client Team.

Don’t become an intestate

Recent research has indicated that as many as 1,200 widows and widowers are made to leave their homes each year by resentful children or other relatives laying claim to an inheritance. This is due to the unusual way in which the intestacy laws apply when there is no Will.

Married couples often assume, wrongly, that if their spouse were to die then they would inherit automatically the whole of the estate; however, this is not always the case. The intestacy laws may mean certain assets are distributed to other surviving relatives. For example, those couples with children will inherit their spouse’s personal possessions and the first £250,000 of the estate. This was only increased in February 2009 from £125,000. Given that the average house price in London and Surrey is £245,000, this is not a particularly high allowance. The remainder of the estate will be split in two. One half will pass into a statutory trust in which the surviving spouse has a life interest. The other half will pass equally to children on attaining the age of 18.

Where the deceased was childless but there is a surviving parent, sibling, nephew or niece, the surviving spouse will receive the first £450,000 and half of the residue; the remainder will go to other relatives.

The intestacy rules can cause family conflict, particularly in scenarios where wives in second marriages may come up against children from their spouse’s first marriage. The intestacy rules were drawn up in 1925 and are a reflection of the society that existed at that time. Whilst the Law Commission are reviewing the intestacy rules (for example, should they be extended to cohabiting couples?), it remains sensible to make sure that a properly drafted Will is put in place reflecting your wishes and protecting your family after your death.

For further information contact Carter Bells’ private client team.

Commercial Landlords
A recent 'code of conduct' applies to commercial Landlords in relation to money claims pursued against individuals. Failure to follow the 'pre-action protocol' may result in an adverse costs order, loss of interest or even a suspension in the legal claim (which will usually mean further costs).

Residential Landlords and Tenants:
• Ensure all demands for service charges are sent with a summary of rights and obligations of tenants, otherwise a tenant may withhold payment
• Make sure demands are sent out within 18 months of being incurred. otherwise the tenant may not have to pay them!
• The wording in the Notice should be changed from 'Lands Tribunal' to 'Upper Tribunal'

Tenancy Deposit Schemes
Almost three years after the laws relating to the protection of tenants' deposits came into force (April 2007), we are acting for an increasing number of landlords and tenants seeking advice on the implications for failing to protect deposits (or for failing to comply with the terms and conditions of the particular deposit scheme).

Law Society research reveals risks of nightmare will writing companies

The Law Society has published the findings of its research into unregulated will writers. Many people have been left with invalid or badly drafted wills and have had to seek the later intervention of a solicitor to sort out the mess. The research shows that far from saving money by using one of these will writers, people have had to pay more in legal fees to resolve the situation than they would have by going directly to a solicitor. Read more here.

"Final" Companies Act reforms now in force

1st October 2009 saw the implementation of the final changes in the Companies Act 2006. Whilst this Act was brought on to the statute book on 8th November 2006 it has over 1000 sections and so it has been implemented in stages. Many features of company law have their origins more than a hundred years ago and are not necessarily suitable now for regulating companies.

The final changes now in force amongst other things deal with the following:
• New company formation: From the 1st October the documentation required is very different; the historic memorandum setting the objects or purpose of the company is an abbreviated document and there are new model articles or constitution depending upon the type of company.
• Existing companies formed before October 2009 will have constitutions that are based on the former law. The articles containing the constitution that have matters that are not required now may be regarded as out of date and could be changed provided the appropriate procedure (special resolution requiring the requisite majority) is passed.
• All forms used by Companies House have been updated so if you are in the habit of filing forms, for example on change of directors or situation of registered office you will need to do this on the new form. Details can be obtained from Companies House website: www.companieshouse.gov.uk
• Directors of existing and new companies now have the ability to prescribe a “service address” rather than their usual residential address. Home addresses will not be put on the record after 30th September although Companies House will still hold a database of these which can be disclosed in limited circumstances. If no action is taken the residential address will automatically become the service address until the information is provided in the next annual return. If you want to take advantage of this and protect your self from unwanted access to your home address then changes can be notified on Companies House form CH02.