Revocation by marriage and civil partnership
English law regards entering into a marriage or civil partnership as a highly significant change in personal circumstances. Once two people marry, they acquire rights and obligations in law (including the right to inherit when one of them dies intestate). Due to this, English law assumes that existing Wills are no longer appropriate and revokes the Will on marriage or civil partnership (unless WA 1837 s18 applies).

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The act of marriage revoking a Will can however be a big problem for your family. After all, if your partner/spouse/civil partner inherits everything on your death now, then in later years they marry and die after, would you want your monies/estate passing to the NEW spouse or then on to the NEW spouse’s family, with nothing going to ‘your’ family?

 

The rules on dying intestate can seem very unfair, with assets being distributed by fixed rules. The first rule being whether you left a surviving spouse or civil partner! 

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Please note, South Coast Legal Services do NOT offer a ‘Mutual Will’ service (an agreement between two people to make Wills in similar terms to achieve agreed results by creating a constructive trust). This is because it is one of the key principles of English law that we each enjoy ‘testamentary freedom’ to make a Will, leaving assets to whomever we wish. Tied to this principle is the right to revoke your Will and make a new one. A Will can be revoked (cancelled until death) expressly or replaced by a subsequent testamentary instrument, by destruction, by subsequent marriage or civil partnership. This freedom to make and change your mind is a right which an individual can exercise without regard to the wishes of anyone else. Please note however (I(PFD)A1975) shown below.

 

Provision for Family and Dependents Act (I(PFD)A1975)
It is possible for certain persons to make a claim on your estate if it can be shown that at the time of your death your Will does not make reasonable provision for them. Any claim allowed, would be assessed by the Court. If it was anticipated that such a claim could arise it might be advisable to leave a letter to your Executor setting out any special circumstances relevant to any possible claim. The persons that may have a right to apply to the Court are:
* Your husband/wife* any former husband/wife or civil partner provided he or she has not remarried or has entered into a subsequent civil partnership, or an order of the Court bars any claim* any child of yours* any person not being your own child who in the case of any marriage of yours was treated by you as a child of the family in relation to that marriage * any other person who immediately prior to your death was being maintained wholly or in part by you* any person to whom you have made a substantial contribution to their reasonable needs. 

(I(PFD)A1975) can cause a lot of concern to clients when making a Will. Although you may have testamentary freedom to make a Will, leaving assets to whomever you wish, this act enables certain persons to make a claim on your estate.
Due to the industry increasing rise in contentious probate and Wills, our services have been extended to reflect this (S2 & S6).

 

Ademption
Ademption occurs when a specific gift in the Will such as a house, bank account or a car ceases to be part of the testator’s estate between the making of the Will and the testator’s death. The result is the gift is adeemed and the proposed beneficiary receives nothing. For example, I leave my Jaguar car (but at death you own a Ford), I leave my property 1 The Mews (but at death you own 12 The Avenue), I leave my Santander Bank Account (but at death you bank with Nationwide) etc.

Gifting of Chattels
Many clients want specific chattels to be mentioned in the Will, i.e. my Rolex watch to... my wedding ring to...my paintings to...but remember (as above) the rule of ademption could occur. Or you may simply change your mind on whom gets what. Rather than specific mention of individual chattels in your Will you can make gifts, in a less formal way, of any items which are within your personal chattels and which have not already been gifted. You should prepare a letter or list, clearly setting out your wishes, which should be signed and dated by you. The letter can be left with your Will but in any event, it is essential that your Executors are aware of it at the time of your death. This arrangement is of practical use in that it is not necessary to itemise in your Will these types of gifts. Further you can make changes to your letter of wishes without the need to make a new Will. Please remember that this only applies to personal chattels which include tangible personal items such as cars, jewellery and other household goods. It does not include, for example, houses, land, bank accounts, property held solely as an investment and property used mainly for business purposes.    

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​Living Will/Advance Directive
Informed adults have a legal right to refuse specific medical procedures and can express preferences about treatment in advance, if unable to make or communicate those decisions. Living Wills (also known as Advance Directive/Decisions) are recognised in law under the Mental Capacity Act 2005 if signed, witnessed & capacity established. As this can deal with 'refusing' medical treatment, it is different to an advance statement that notes your wishes, beliefs and values regarding care.

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Residence Nil Rate Band (RNRB)
The Residence Nil Rate Band (RNRB) refers to Finance (No.2) Bill 2015 where an extra Residence Nil Rate amount will be introduced for deaths on or after 6th April 2017. This is an addition to the Nil Rate Band (NRB).

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The current Nil Rate Band (NRB) is £325,000 and the current Residence Nil Rate Band (RNRB) is £175,000 and from 2021 now frozen (not now indexed in line with CPI). The RNRB only applies to the estate of a person who’s died. It doesn’t apply to gifts or other transfers made during a person’s lifetime. 

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This is a complex area especially when using Trusts. Our recommended Will Trust Solutions (Options C & D) have all been updated to receive the NRB/RNRB or Combined Nil Rate Band and it is vital the appointment of Executors and Trustees is considered appropriately in order that the allowances can be utilised.

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The RNRB is only available where the deceased’s residence, (or share) is inherited by direct descendants as follows:
Children, Step Children, Adopted Children, Foster Children, Grandchildren, Great Grandchildren & issue of the above & spouses of the above, unless they remarry.
Non descendants are as follows: Parents, Siblings, Nephews, Nieces & Other Relatives

 

UK Vs Non-UK - Foreign Assets - Will/Trust Planning
The normal rule has always been UK planning for UK assets…So, if you have overseas properties or you intend to sell up and move outside the European Union, you may not be able to take advantage of UK Tax/Trust law for these assets. However, if you have assets across different countries in Europe, you might be able to make use of a European Regulation called ‘Brussels IV’.  As this is a complex area, we normally refer to updated guidance from Countrywide Tax & Trust Corporation Ltd.