Home made ‘Will’. Testator elderly gentleman unmarried with long term cohabitee. His long term partner has four children. Testator sole surviving relative is elderly sister.
Document dated 21/3/2106 says ’ I …being of sound mind make the following declaration: I leave all my possessions my property in sheffield and Italy and my portfolio to R… S… (RS is one of the four children of long-term cohabitee and tells us that is was always testator’s wish that she will share the estate equally with her three siblings - which she will by Dof V at the appropriate time.)
If for any reason (death or incapacity) she is unable to perform this duty the responsibility will pass to her sister A…S…
Payment of £5,000 will be made from my accounts for execution of this duty.
The document is signed by the testator and witnessed by two witnesses but no formal attestation clause.
Would be grateful for forum responses to our current thoughts, summarised as:-
(i) This could be sufficient to constitute a testamentary document
(ii) may be helped by statements of truth from the witnesses confirming circumstances of execution and the fact they were both present when he signed and when each other signed
(iii)Estate is around £650k with only one IHT allowance and no RNRB or TNRB so potentially around £140k IHT.
(iv) Property and investments around £620k and £30k in savings.
(v) partial intestacy as no gift of money or residue so sister would inherit residuary estate- the £30k- but IHT will more than wipe out residue. So sister will not receive anything if the ‘will’ is valid to transfer the assets to RS.
(vi) Is the document sufficient to appoint R…S… as executor by implication?
(vii) we cannot apply for probate until the IHT has been paid. Somebody will have to raise IHT, which we think will mean borrowing. But the question is who would borrow? We are leaning towards R S as the one who will inherit the property if the will is valid. At this stage we don;t envisage the share portfolio being accessible for this purpose given the lack of clarity as to executors and validity
(Viii) At what point would members involve / engage with the sister? Is it worth engaging with her now with a view to her redirecting any entitlement by way of a notional will (covering whatever her entitlement is - ie just the cash or the whole estate if the will is invalid).
Any other issues that spring to mind?
Michael McCabe
Heath Square Private Client Limited
Nothing like a home-made will, take shares in WH Smiths ….
Of what consists the property in Italy?
English Probate aside, is it immovable - I would assume so from the phraseology - or movable?
The Italian approach to Regulation (EU) n° 650/2012 will be in play in relation to the Italian property and you might need assistance from an Italian lawyer to determine how the “wishes” unwritten by the testator can be put into effect, and which “law” will apply: it will be English unless he has another nationality, but will it be English law with renvoi (habitual residence) or without renvoi (nationality)? The distinction is not as complete as some would have it
The Italians do recognise Hague Convention trusts, but this supposed unwritten arrangement might be difficult to prove sufficiently under that regime and an Italian lawyer would be able to say whether the will would need to be put through probate to be effective in Italy or not. It would have to evidence an intent that the deceased’s whole succession was to be governed by English law.
You might need to take advice from a Italian lawyer as to how far the arrangements can be given effect by simple agreement between the “cohabitee” and her children, but you might have a few issues with succession duties, as it look as if the nil rate band allowance only apples to spouses, (?civil partners?) and blood relatives.
Do we take it that there is no Civil Partnership in place following on from the Supreme Court’s decision that civil partnerships were available to bi-sexual couples?
Assuming he was domiciled within the UK, did the deceased give financial support to his step-children and, if so, can this be evidenced under ss.2 and 3(3) of the Inheritance (Provision for Family and Dependants) Act 1975? That technique is sometimes used in France to give the equivalent or vraisemblance of a reserve héréditaire.
Perhaps Charlotte Oliver, who is Italian qualified might be called in aid?
Home made Wills, DIY litigation plus Mackenzies, Tax advice and Precedents from the Internet or the Unqualifed or those who rush in where Experts fear to tread. Should we have a Regulator for Lay Persons with compulsory PI cover/AML registration for DIY law practice and criminal penalties? A condoc perhaps for Raising Standards in the Self-Advice Sector?
(i) It certainly seems formally valid. You would need to interpret the “legacy” as a secret (or half secret) trust otherwise you have no actual legacy and a full intestacy regardless of the will being “valid”.