A Will is a legally binding document that sets out the wishes of the person making it (the "Testator") regarding the distribution of their worldwide property and assets.
This document may only by used by Testators who are at least 18 years old.
This document is not appropriate for people who have complex assets requiring specialist provisions, minor children under 18 years of age, grandparents who wish to leave assets to grandchildren or those who wish to set up separate arrangements for domestic and foreign assets.
A Testator must have "testamentary capacity" to make a Will, which means that:
(a) The Testator understands the nature of making a Will and its effects;
(b) The Testator understands the extent of the property of which they are disposing;
(c) The Testator understands and appreciates the claims to which they ought to give effect; and
(d) The Testator must have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by Will.
(I) What is Will?
A Will is the key document for the executors of an estate when the Testator dies. The Will names one or more executors who have been entrusted with the duty to carry out the wishes of the deceased. It also provides the executors with instructions on how the estate should be distributed.
A typical Will provides that all debts of the estate including taxes should be paid first. It names one or more executors, who will be responsible for administering the estate and one or more alternate executors if the named executor(s) are unable to act. A Will then sets out any specific gifts of personal possessions or money that are to be made. Whatever is left after all of the specific gifts have been given and all debts have been paid is called the Residue Fund in this document. A Will should contain a residue clause specifying how the residue should be distributed. The residue is often the largest part of an estate, but its value will depend on the assets and debts of the Testator at the time of his or her death and cannot be determined at the time the Will is made. The larger the specific gifts or debts, the smaller the Residue Fund.
A Will should be reviewed from time to time to ensure that it still meets the needs of the Testator. It is important to review a Will in the following circumstances:
(a) The Testator gets married, enters into a civil partnership, gets divorced or their civil partnership is dissolved;
(b) The Testator is unmarried, but has a new partner;
(c) There is a significant change in the amount of money and/or property the Testator owns;
(d) An executor or a significant beneficiary in the Will dies;
(e) There is a birth or adoption of a child in the Testator's family; and
(f) The Testator changes their mind about the provisions in their Will.
(II) STEP Provisions
This document incorporates the Standard Provisions and all of the Special Provisions of the Society of Trust and Estate Practitioners (2nd Edition) (STEP) which deals with the powers of the executor(s). More information on the STEP provisions can be found on the STEP website.
(III) Wills where minor children will be beneficiaries
If the Testator has children under 18 years of age and wishes them to inherit all or part of the estate then the Testator must decide which type of trust is required for the children before completing this document. If the Testator does not understand trusts for children or is unsure of which type of trust to choose, then legal/taxation advice must be sought from a solicitor and/or a tax planning expert. Such professionals will be able to advise on which type of trust best suits the Testator's situation. This document provides for each of the main types of trust.
There are 5 main types of trust that can be created in a Will to benefit minor children as follows:
(a) Bare Trust
(b) Trust for Bereaved Minors (TBM)
(c) Age 18 - 25 Trust
(d) Immediate Post-Death Interests (IPDI)
(e) Discretionary Trust
This Will only provides for the first 3 types of trust (Bare Trust, Trust for Bereaved Minors and an Age 18 - 25 Trust). This document should not be used if the Testator wishes to set up an Immediate Post-Death Interests Trust (IPDI) or a Discretionary Trust for minor children.
The key features of the 3 types of trust available in this document are set out below. There are also different tax implications relating to each type of trust and a Testator must understand such tax implications in order to ensure that the most suitable trust is selected.
(a) Bare Trust (also known as an Absolute Trust)
A Bare Trust can be created by any Testator for a minor child. Under a Bare Trust the only thing preventing a child from inheriting their share or all of the Residue Fund is the fact that they are under 18 years of age. At age 18 the minor child can call for their inheritance. The inheritance belongs to the minor child and accordingly if the minor child dies or faced claims against their assets, the inheritance would be considered the minor child's asset and as such would pass under the rules of intestacy. Income or capital of the inheritance could be applied for the minor child's benefit at any time before their 18th birthday.
(b) Trust for Bereaved Minors (also known as a TBM or BMT)
A TBM can ONLY be created by a parent of a minor child. Under a TBM the child will be entitled to the capital of their inheritance at 18 years of age but capital may also be paid out for the child's benefit before their 18th birthday. The child's trustee has discretion over whether to pay out the trust income but income can only be applied for the minor child's benefit. The inheritance does not belong to the child until their 18th birthday, so cannot be subject to claims against the child. The terms of the TBM govern what happens to the inheritance in the event that that child dies under 18 years of age and is not governed by the rules of intestacy. There are tax advantages to this type of trust compared to a Bare Trust.
(c) Age 18 - 25 Trust
An Age 18 - 25 Trust can ONLY be created by a parent of a minor child. An Age 18 - 25 trust is similar in terms to a TBM, except this trust allows the minor child's trustee to hold the inheritance until they believe the child is capable of managing the inheritance responsibly (anytime up to age 25).
This document is not appropriate for a Testator who wishes to leave assets to minor children in the following circumstances:
(a) If the Testator wishes to set up a Discretionary Trust or an Immediate Post-Death Interests (IPDI) for minor children.
(b) If the Testator is not sure of which type of trust to choose and has not sought professional trust planning advice.
(c) If the Testator does not understand the tax implications of the different types of trusts and has not sought professional taxation advice.
(d) If the Testator is the parent of a minor child with a limited life expectancy who is likely to die before reaching 18 years of age.
(e) If any minor child has disabilities requiring ongoing specialist care.
(f) If the Testator is a grandparent and wishes to leave assets to their minor grandchildren.
How to use this document
This document should be completed in full and printed. The Will must then be signed by the Testator and two witnesses at the same time in the presence of each other. The witnesses must not be beneficiaries under the Will. The Testator must also put their initials on the bottom right hand corner of each page of the Will. The signed and witnessed Will must be kept in a safe place and the appointed executor(s) should be told where they can find it. Alternatively, copies of the signed Will can be given directly to the executor(s).
Wills Act 1963
The Standard Provisions and all of the Special Provisions of the Society of Trust and Estate Practitioners (2nd Edition) (STEP)
Children Act 1989
Banks v Goodfellow (1870) LR 5 QB 549
Trustee Act 1925
Inheritance and Trustees' Power Act 2014
Inheritance Tax Act 1984
Adminstration of Estates Act 1925
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