Is my mother's will legal?
"My mother died eight years ago, and although she had written a will, it had not been witnessed. As she had concerns about providing for the children when she died, after her death my father had a friend witness the will, which passed her estate on to him.
"He has now married again and is selling the family home as his new wife says it’s not hers. Is it too late to contest the will on the basis that it was not properly witnessed?"
Ask the Professionals: Charles Hutton, a partner at Speechly Bircham and inheritance tax planning specialist, says:
Under English law, a will must comply with certain requirements in order to be valid. One of these requirements is that the person making the will (the ‘testator’) must sign it or acknowledge his/her signature in the joint presence of two witnesses. Those witnesses must then each sign the will in the testator’s presence.
It appears that your mother’s will was signed by her but not witnessed properly. This means that the will is not valid. As such, unless there was an earlier unrevoked will, her estate will pass in accordance with the intestacy provisions.
Current legislation governing the distribution of an intestate estate, as well as provisions in force at the time of your mother’s death, can be found on the Office of Public Sector Information website.
Under the intestacy rules, the first slice of your mother’s estate will pass to your father. As your mother died eight years ago, your father would be entitled to £125,000 (together with all of her personal property, such as jewellery and furniture).
Should the total value of your mother’s estate fall within this band, your father is entitled to her whole estate and there will be no surplus to distribute to her children or other relatives. If the estate exceeds that, half of the excess is held in trust for your father during his lifetime and then passes to the children on his death. The other half of the excess passes to the children on your mother’s death.
There is no specific limitation period in relation to probate claims in
circumstances such as this. If the personal representatives have already distributed the estate, they will have to claw back sums paid out or pay such sums out of their own pockets.
The process of applying for the right to deal with a deceased person’s estate. If a person has left a will, they will usually have appointed a will executor. The executor then has to apply for a ‘grant of probate’ from the probate registry, which is a legal document that confirms the executor has the authority to deal with the affairs of the deceased. If a person dies without making a will, intestacy law applies (see intestate).
If you die without making a will, your estate will be divided up and distributed according to a set of complicated procedures laid down by the law as set out in the Administration of Estates Act 1925. The more complicated your life, the more complicated the intestacy laws after your death. Given that 60% of registered deaths last year were intestate, according to Title Research, the only way to ensure your estate is divided according to your wishes is to make a will.
This is more usually a feature of car insurance but it can also crop up in contents, mobile phone and pet insurance policies. An excess is the amount of money you have to pay before the insurance company starts paying out. The excess makes up the first part of a claim, so if your excess is £100 and your claim is for £500, you would pay the first £100 and the insurer the remaining £400. Many online insures let you set your own excess, but the lower the excess, the more expensive the premium will be.
Everything you own: all your assets (property, cars, investments, savings, insurance payouts, artwork, furniture etc) minus any liabilities (debts, current bills, payments still owed on assets like cars and houses, credit card balances and other outstanding loans). When you’re alive this is called your wealth; when you’re dead, it becomes your estate.
The tax levied on the total value of your estate after you die. IHT has to be paid by the beneficiaries of your estate before they can receive any of the money from it. The money can’t be taken from the value of the estate _– it has to be paid before any money can be released. There is an IHT threshold – known as the “nil-rate band” – below which no tax is levied (£325,000 in 2011/12). Any amount above the nil-rate band is subject to tax at 40%. If your estate totals £600,000, there is no tax on the first £325,000; however your estate will pay 40% tax on the remaining £275,000, a total of £110,000. Prudent tax planning can reduce your IHT liability, so always consult a specialist solicitor.