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Advice On Making A Will Please

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lyall | 16:41 Tue 13th Aug 2013 | Law
12 Answers
Hello

I am trying to help my friend (a 93 year old widowed lady) re-write her will. It’s been going on for 17 weeks now and we don’t seem to be getting anywhere. Is there anyone here who can clarify things for me?

My friends’ old will was written by her solicitor and the ‘new’ will has been seen numerous time by the same solicitor but he keeps finding things to ‘disagree’ with and won’t seem to get down to writing it. As far as I am aware his firm is quite reputable. I am beginning to wonder if he just has something against my friend. My friend has quite an estate and inheritance tax will come into play.

The first visit began by him not letting her prospective executors go in with my friend for her appointment (as I said she’s 93 she’s also partially sighted and slightly deaf) I thought this odd as the executors went in with her when she made her last will 10 years ago. The first thing the solicitor took exception to were the executors she had named. My friend had put down two married friends (one of whom used to work in probate) and the said solicitors firm as her executors. The solicitor told her she couldn’t have a married couple as if there was a problem then he could be out voted. I told her to just put one of the friends down and the solicitor and that would be ok. Unknown at the time to myself and the married friends, the solicitor rang my friend up a few days after this appointment and asked if she had thought of another executor, she panicked and as she had a lady from down the road visiting her at the time she said her name. The solicitor spoke to the lady and this was put in motion.

When the 2 friends and myself found out we disagreed with this decision and after speaking to my friend we found out that by then she had had a think about it herself and had realised her mistake. It was agreed between the 4 of us that on the next visit to the solicitors it would be changed to just the 2 executors. The solicitor seemed to take umbrage to this and told my friend that he wanted her to go to see her GP and get them to write a letter to him saying that she was mentally capable of writing a will. The GP did numerous tests all of which she passed, the letter was given to the solicitor, but still he seems reluctant to proceed.

The next visit my friend had changed how she wanted her beneficiaries to recieve their legacies. At the beginning she had their ‘gifts’ down in pounds but she then decided it would be simpler if it was percentages. The solicitor strongly advised her against this but didn’t give any reason why, he also said that it wasn’t permitted to add, to a specific beneficiary, a statement saying that if this person dies before her his share should go equally to his children, I’ve seen this on quite a few wills so cannot understand why he says it isn’t permitted. He also said that he wouldn’t proceed any further until my friend had had a hearing test as she was having trouble hearing him that day.

The solicitor also told us that if she decides against his advice and keeps the percentages there will be no need to have a residual clause in the will. Personally I think that this clause should be left in. My reason for this is my friends’ husband used to play the stock market and do all kinds of investments and stuff; he passed away 10 years ago but my friend still keeps getting the odd cheque through from different banks and investment places for miss calculations on old investments and accounts. If any of these arrive after she has died and the will sorted then this would be counted as residual estate would it not? so there needs to be something in place that states if any other monies arrive they must go to whoever is stated, surely?

There have been 3 solicitors visits between the first and second visits mentioned above where nothing has been said other than go home and think about it before you make any decisions.

Thank you for taking the time to read this, I hope someone will be able give me some advice.

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I used to sit in on many Will appointments when I was in Banking. The Bank used Irwin Mitchell as the solicitors always preferred the percentage system as it meant the Will required less amendments than in monetary terms as the value of the Estate varied over the years. Should any beneficiary predecease the testator, if they are a descendent of her or her parents, yes their share would go to their children equally, but if it was a friend the share would be added back to the Estate and divided between the other beneficiaries increasing their percentage. A new Solicitor or an appointment with her Bank or a professional Will Writing Service may be required.
Get another solicitor...he takes the instructions...doesn't argue with you ....there are also will making organisations...I would definitely go elsewhere !
agree ubasses.

The old lady is writing the will so it is reasonable to have only her in the room when she does it - so excluding the execs is OK

you or more reasonably she can insist the solicitor is NOT an exec - good for her and bad for the solicitor as he then cant charge charge charge

I agree with the per centage bit and would always put in a residural clause - impt before the WIlls Act (1837 !! yes you read right,) because the execs got the residuum if it were not defined.

The residual estate is whatis left over so if 30% is left to Annie and 68% left to Bertie then the residuum is 2%.

Remember to keep it simple.

I think your fren' should change lawyers - BUT (emphasis and not shouting) you dont know if the ninety three year old has ALSO been saying to the lawyer - well Mr Snog-bins, I really dont know - and they all seem in SUCH a hurry....
Should have gone on to say, if any funds come through after the beneficiaries have been paid out (due to miscalculations) it should be divided between the beneficiaries as per the percentages quoted in her Will. That should be done automatically by the Executors. Hopefully they should resolve all problems with these Companies, but I know we still got small amounts from my MIL's estate after it had been completed.
If the Estate is over the IHT threshold and complicated it would be adviseable to have a professional as an Executor,but I do not understand the bit about him being outvoted as their job is to comply with the Will. Hopefully one of the Legal people will be along later with advice for you.
Ah, Peter Pedant snuck in there while I was typing slowly!!!
We went through a will making firm recommended by the bank. We had a neeting that lasted about 90 mins to discuss everything. A week later we received a copy for our perusal and to make sure it was as it should be.The final copy arrived about a week after that,it was signed,witnessed and returned to the bank for storage and we were given a copy and a letter for the executors saying where the original was stored and who to get in touch with if we wanted to make any changes. Total cost £90,time from staring proceedings to finalisation about 4 weeks.That was about18 months ago and we had no problems or complaints in the proceedure.
.

I was NOT assisting some old codger in Turkey who was dying from secondaries looked after faithfully by a Turkish waiter. But I did give a copy of my father's will which was simple and clear in the extreme.
He didnt execute any will - the family gleefully came down after his predictable and speedy demise and sold the Turkish property turfed the waiter out on the street and were very very satisfied with how things had turned out....

Many many phrases of I have worked hard for this money It is mine !

and it is difficult to know who is right....
yeah Paddywak has told like it should be

I mean you have already clocked up three vizeets from the lawyer
for which he will charge and your fren' will pay (perhaps £100-200/hr)
and you aint seen anything....
Change the solicitor. Don't have a solicitor as executor in a professional capacity; fine if they are a close friend and will treat the executorship as a personal favour, but only on those terms and made clear in the Will. Any executor is entitled to seek professional help and charge it to the estate so appointing a lawyer simply because they are a lawyer is pointless and expensive.

I was executor twice and employed accountants, solicitors, land agents, estate agents, and some other professionals as and when, all of it charged to the estate without question. It presents no problem. Giving a lawyer a cut does.
I used to be MD of a will-writing company.

Firstly, the solicitor seems determined to be an executor (and a powerful one at that, from what you've written!). There is absolutely no need to name the solicitor as executor and I'd actually advise against it. If the will is straightforward the 'non-professional' executors can obtain probate and distribute the estate without any professional assistance. If it's not, they can appoint their own solicitor anyway. (He/she can still be paid from the estate before distribution of whatever remains).

There is no reason to avoid percentages. (My own will uses them exclusively). They're probably far more practical than leaving specific legacies.

Any well-drafted will should ALWAYS state clearly what should happen if a beneficiary should pre-decease the testator. While Ubasses states what should happen if no such provisions are included in the will, the testator is free to determine to whom the money should be left. (e.g: "I give 20% of the the value of my estate, after the payment of just debts and expenses, to Helen Lisa Smith of 24 Railway Cuttings, Watton in the County of Norfolk. If the said Helen Lisa Smith shall pre-decease me, or die within 28 days of my death, I give such sum to Battersea Dogs and Cats Home at 4 Battersea Park Road, London SW8").

In general, the solicitor seems to be talking total rubbish. (If anyone needs their mental capacity tested, it would seem to be him!). However I do agree that the use of percentages should exclude any residual clause because all debts due to the estate form part of that estate, irrespective of the date upon which they're paid. (So any 'late' money should still be distributed in accordance with the percentages stated within the will).

My advice is the same as that given by Murraymints: Get another solicitor!!!

Chris
I think you have 10 /10 for change
the solicitor that is !

surely enough advice for one day

PP
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The reason the solicitor was asked to be an executor was because 2 of my friends 3 executors on her old will died within 3 months of each other earlier this year leaving only one executor who is in his mid 80’s. He will still be an executor on the new will but as my friend is now in her 90’s we thought that if he died before her we should have someone independent as an executor (hence the solicitor) that way the will would never have to written again. The only ‘young’ people my friend knows and trusts are myself age 50 and my sister age 55 who lives 400 miles away. I would prefer not to be an executor as I have health issues but have said I would if there was absolutely no other choice.

Unfortunately my friend will not change her solicitor as it was the one chosen by her husband. My concern is if we take the solicitor off as an executor and add someone else independent (though no idea who) would the solicitor then start saying she wasn’t competent again because it would be yet another change of mind? I was suspicious when the solicitor said about being out voted, my first thought was ‘what problem!?’ as we are trying very hard not to leave any problems with this new will and also importantly that the will never has to be re-written again. After thinking about it I wondered if the solicitor had spotted a problem but wasn’t going to say.

I’ll admit my friend can come across as a bit of a ditherer and will go round the houses to get to a point, but from what she has told me she has been quite specific when speaking to the solicitor, but as you say only they know for certain what was said.

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