If you buy a house, who owns it between exchanging contracts and completion (that’s when you get the keys)?

Imagine you picked up the keys to your property (on completion) only to find someone had broken in, trashed the place and stolen the radiators, copper piping, etc. causing a leak!

You do not legally own a property until completion (this is when the rights of ownership are formally transferred or conveyed to you the purchaser).  When contracts are exchanged, the parties are legally committed and the completion date is fixed. 
 
It should be noted though that responsibility for the property is typically transferred to the buyer from the date of exchange of contracts, since this is presumed to be a binding commitment to proceed to completion. It is for this reason that the purchaser is best advised to make certain that buildings insurance cover starts from the date of exchange of contracts.

However, for new build properties it is usual for the developer to maintain the insurance up to the date of completion; so in this instant you only need to insure the property from the completion date.
Should the situation above arise the purchaser would still be expected to complete and would have to progress a claim with their insurance company.   In practice though, the seller is unlikely to have cancelled their buildings insurance and so all parties would likely need to submit joint claims and it's probable that the insurers would settle the liability between them.

Unfortunately, if you do not arrange buildings insurance cover effective as from exchange of contracts and the damage to the property occurred after exchange, subject to checking the seller's buildings insurance cover, the purchaser may well have no option but to dig into their pocket to pay for works needed to rectify the damage.

Please note The Will Centre does not offer a conveyancing service but we can recommend someone who does.

Business Relief for Inheritance Tax

1. Overview

Business Relief reduces the value of a business or its assets when working out how much Inheritance Tax (IHT) has to be paid.

Any ownership of a business, or share of a business, is included in the estate for IHT purposes.
You can get Business Relief of either 50% or 100% on some of an estate’s business assets, which can be passed on:

• while the owner is still alive
• as part of the will

How to claim relief

As the executor of the will or administrator of the estate, you can claim Business Relief when you’re valuing the estate.

You must use the market value of the business or asset when calculating relief at 50%.

You can claim relief on:

• property and buildings
• unlisted shares
• machinery

2. What qualifies for Business Relief

You can get 100% Business Relief on:

• a business or interest in a business
• shares in an unlisted company

You can get 50% Business Relief on:

• shares controlling more than 50% of the voting rights in a listed company
• land, buildings or machinery owned by the deceased and used in a business they were a partner in or controlled
• land, buildings or machinery used in the business and held in a trust that it has the right to benefit from

You can only get relief if the deceased owned the business or asset for at least 2 years before they died.

What doesn’t qualify for Business Relief

You can’t claim Business Relief if the company:

• mainly deals with securities, stocks or shares, land or buildings, or in making or holding investments
• is a not-for-profit organisation
• is being sold, unless the sale is to a company that will carry on the business and the estate will be paid mainly in shares of that company
• is being wound up, unless this is part of a process to allow the business of the company to carry on

You can’t claim Business Relief on an asset if it:

• also qualifies for Agricultural Relief
• wasn’t used mainly for business in the 2 years before it was either passed on as a gift or as part of the will
• isn’t needed for future use in the business

If part of a non-qualifying asset is used in the business, that part might qualify for Business Relief. 

Example If you use one room in a building as a shop and the other rooms are used as your home, the shop will qualify for Business Relief but the rooms won’t.

Relief for agricultural property

You may be able to get Business Relief on a transfer of agricultural property (e.g. farmland, buildings or farm equipment) which isn’t eligible for agricultural relief.

3. Give away business property or assets

Someone can give away business property or assets while they’re still alive and the estate can still get Business Relief on IHT, as long as the property or assets qualify.

How to get Business Relief on a gift

If someone gives away business property or assets, the recipient must keep them as a going concern until the death of the donor if they want to keep the relief.

They can:

• replace the property or assets - like machinery - with something of equal value if it’s for use in the business
• only get relief if the donor owned the business or asset for at least 2 years before the date it was given 

When is a gift no longer liable for Inheritance Tax

Any gift made more than 7 years before the donor’s death doesn’t count towards their estate for IHT purposes.

If you need further advice or help on this please call us on 01752 607040 or email us at facebook@thewillcentre.com

The Cohabitation Rights Bill

The concept of ‘Common Law’ marriage is a myth.  If you are not legally married or in a registered civil partnership then your rights of inheritance are limited or nonexistent.

In terms of inheritance you need to make a Will to protect your partner should you die whilst unmarried.  Call us on 01752 607040 for further advice.

There are plans to address this situation with The Cohabitation Rights Bill (the “Bill”), which aims to establish a framework of rights and responsibilities and provide basic protections for cohabitees similar to those available to married couples.

1.       What if you have chosen not to marry because you do not want the rights and responsibilities that come with being a spouse?

2.       What if you have deliberately sought to avoid the paperwork, the jewellery and the general fuss of divorce should you decide to separate?

A proposed new The Cohabitation Rights Bill decides that the default position is couples are automatically opted in and so should you wish to exclude yourself from the framework of the Bill you must expressly opt out of it.  Although the Bill is currently at Committee Stage and not yet on the statute book, the proposed legislation gives cohabitees three ways to opt out as follows:

By entering into a…

Opt-out agreement - there are a number of formalities required, not dissimilar from those which apply to Qualifying Nuptial Agreements (the Government’s vision for an all-English enforceable pre-nup). Both parties must have received independent and separate legal advice and understand the operation and consequences of entering into an opt-out agreement; i.e. that a Financial Settlement Order (“FSO”) will not be available to them on the breakdown of their relationship. The parties can agree that an FSO will not be available under any circumstances or they can apply their agreement to certain assets or situations only, such as a FSO not being available in respect of the parties’ home, or a FSO being available only if the parties have a child together. This certainly seems like a flexible and user-friendly solution. However, opt-out agreements can be varied or revoked by the court, although only in circumstances where the court views such an agreement as manifestly unfair to the applicant due to the circumstances in which it was entered into or an unforeseen change in circumstances.

Cohabitation agreement - these are a helpful and flexible method of recording a parties’ intentions about the way they will organise their affairs whilst they are a couple and/or when they separate. Litigation brought to investigate parties’ intentions about the legal and beneficial ownership of their property can be long-running and expensive and to have intentions set out expressly in an agreement can save time, money and heartache on separation. A cohabitation agreement may also provide for one party to pay maintenance to the other party upon a breakdown of the relationship, something which is not currently available to unmarried couples.

Deed of trust - a deed of trust can be used to show who has a legal and/or beneficial interest in a particular asset or property. Trust deeds were historically the main and most popular source of protection for cohabiting couples wishing to protect their interest in a property where they were both living. Where beneficial interests are not clearly and plainly set out in a trust deed, difficulties can arise and the courts are often called upon to infer the parties’ intentions and construct or imply trusts where no formal deed was entered into, often years after those intentions were formed, which can lead to great uncertainty of outcome.

Under the proposed legislation, the court may vary or revoke a cohabitation agreement or deed of trust “in such circumstances and to such extent as the court considers appropriate”. Although there are no formalities or requirements to be fulfilled in entering these latter two types of agreement, it may be wise to follow the formalities set out in respect of opt-out agreements to secure the best chance of the agreement being enforced and avoiding a variation or revocation by the court.

The Cohabitation Rights Bill is currently at the Committee Stage and is not yet law in force in England and Wales.

Divorce, the Final Frontier?

Obtaining a divorce does not have to be a complex process; the process is laid out below.  But remember, that divorce DOES NOT invalidate any Will you have made.  Certain parts may no longer be valid but the rest of the Will still stands!  If you want advice on the effect a divorce or separation has on your Will, or if you don’t have one then please contact us on 01752 607040 for a FREE Review at our office in Stoke Village.

The advice below is general; this is NOT a service we offer at The Will Centre.

If you need a referral to a divorce expert please let us know.

Q. When can I start divorce proceedings?

A. Divorce proceedings cannot be commenced until you have been married for at least a year.

Q. How is the divorce process started?

A. The person wishing to begin the divorce proceedings must file an application at Court known as a ‘petition’. The person who files the petition is referred to as the Petitioner, and the person who receives the petition is referred to as the Respondent.

Q. What are the grounds I can use to get a divorce?

A. There is only one ground for divorce and that is the irretrievable breakdown of the marriage.

The fact that the marriage has irretrievably broken down is evidenced in the petition by citing one of five possible facts:-

• Adultery


• Unreasonable behaviour


• Two year separation with mutual consent


• Desertion by your spouse


• Five years’ separation whether or not your spouse consents

Q. Should I be the Petitioner or the Respondent?

A. A divorce petition is often seen as a means to an end and in some circumstances it can be politic to agree to be the Respondent, rather than to commence the proceedings (i.e. be the Petitioner).

However, generally, it is preferable to be the Petitioner for several reasons. Firstly, it gives you more control over the timetable of the divorce itself. Also the Petitioner may obtain an order for costs against the Respondent on the two fault-based petitions namely adultery or unreasonable behaviour.

It is possible for the parties to determine who is to issue the petition in advance by providing for this in either a Pre-nuptial or Post-nuptial Agreement. For further information please see our Briefing Note on Pre-nuptial Agreements.

Q. How long will a divorce this take?

A. Anywhere between three to six months to obtain a divorce if there are no delays; longer if the financial arrangements are not finalized within this timeframe.

Q. Are divorce proceedings defended these days?

A. Not usually these days.  The Respondent has to argue either that the marriage has not irretrievably broken down and/or refute the particulars on which the Petition is based. 

A Respondent who accepts that the marriage has broken down may still choose to defend the petition and file their own petition (technically referred to as a cross petition) setting out his or her grounds for the breakdown of the marriage.  This will increase the costs of the divorce considerably for both parties but can, on occasion, be appropriate. It is also sometimes possible to agree that the Decree should be pronounced on both petitions, called cross Decrees.

Q, What is the Procedure?

A. The procedure is as follows:

1.     Lodging the Petition

2.     Service of the Petition

3.     Applying for Decree Nisi

4.     Filing Documents at Court

5.     Decree Nisi (does not end the marriage)

6.     Application for Decree Absolute (ends the marriage)

Six weeks and one day after the Decree Nisi is pronounced, the Petitioner can apply for the Decree Absolute. It is only when you receive this Decree, that you are finally divorced.

Q. I’ve heard of something called a ‘Judicial Separation’; what is that?

A. It is possible to start judicial separation proceedings, or nullity proceedings, if you have been married for less than a year (or later if appropriate).  Judicial separation proceedings will not terminate the marriage and you would not be free to re-marry at the conclusion of the proceedings. This is usually most appropriate for people who have religious objections to a divorce.

Join us on Facebook.  You 'will' be most welcome.

https://www.facebook.com/thewillcentre

STEP Advanced Certificate in Will Preparation (England and Wales)

Congratulations to Alan Porter of The Will Centre on passing STEP Advanced Certificate in Will Preparation (England and Wales).

STEP is a unique professional body, the leading representative and training body for solicitors, barristers, accountants, will writers and other professionals who specialise in trusts and estate planning. STEP provides members and those affiliated to STEP with a local, national and international learning and business network focusing on the responsible stewardship of assets today and across the generations.

Now, more than ever, clients need properly qualified and capable will draftsmen to prepare their wills. Family structures have become increasingly complex over the years and private wealth has grown significantly. These factors are beginning to focus the spotlight on the competence of will writers and the threat to the public of poorly drafted wills. The client, or the client’s family, may not appreciate the risk until it is too late.

Even well drafted wills may not reflect the circumstances or real needs of the individual unless the will draftsman possesses the breadth and depth of knowledge to ask the right questions and to advise the client appropriately. To be a truly “trusted advisor” the practitioner needs a holistic knowledge across a range of technical areas and the client-facing skills to apply that knowledge in the right way.

This Advanced Certificate, the first of its kind at this level in will preparation, has been designed with this aim in mind: to develop the trusted will draftsman who can demonstrate through qualification that they have the knowledge and skills to provide an excellent service to their clients, whatever the client’s needs and circumstances.

Launched in 2011, the STEP Advanced Certificate in Will Preparation has been developed at the level of the STEP Diploma, the gold standard in the field of trusts and estates education. The core text has been written by Martyn Frost TEP and Toby Harris TEP, well-known writers, presenters and practitioners in the field of wills, estates and taxation. The Advanced Certificate is appropriate for professionals who have existing experience in will preparation.

Law Commission - Intestacy Reforms

In December 2011 the Law Commission published its long awaited report into intestacy and family provision claims on death. The report contains recommendations for reform of the law in these areas following responses to the consultation paper published in 2009.

The largest part of the report focuses on the area which causes the most significant problems under current legislation. Where a couple live together, but are unmarried, the current law dictates that the survivor is not automatically entitled to inherit any part of the deceased’s estate. This is the case regardless of the period of time the couple have ‘cohabited’ or whether or not they have had children together. According to the report; research suggests that there are 2.3 million cohabiting couples within the UK and that the current trend means this figure will be closer to 4 million within the next 20 years.

The Law Commission recommend reform of this current legislation but with limited scope. They recommend that a bereaved, unmarried, partner should not need to go to Court in order to inherit a share of their partner’s estate where the couple has cohabited for at least 5 years prior to death. This period is reduced to two years where the couple have had children together. Although the Commission are reluctant to lower this period of time to include all cohabiting couples, regardless of the length of the cohabitation period, it recommends that the period required before a claim against an estate can be made is lowered from the current two year period.

These changes would bring English law into line with the current law in other Commonwealth jurisdictions.

The report contains a draft Bill, the Inheritance (Cohabitants) Bill, which has been deliberately separated from other recommendations. The proposals have prompted lively debate; the focus being on how a ‘cohabitant’ should be identified and how
it is possible to establish that someone was, or was not, living in accordance with the provisions of the Bill at the time of death. It does not state at what point the status of an ‘unmarried partner’ is acquired or lost and the vagueness of the definitions has been criticised. The new legislation, if it is enacted, could cause problems for those dealing with an intestate estate.

Aside from cohabitation the report also reaffirmed the automatic right of spouses to inherit, but discussed proposed changes to how the current intestacy rules deal with the estate. They recommend that, where a spouse dies leaving no children, the surviving spouse should inherit the entire estate. This contrasts with the current provisions that provide a surviving spouse with the first £450,000 of an estate with the rest being shared with the deceased’s parents or siblings.

Where a spouse dies leaving children the current £250,000 statutory legacy will remain but the Commission have recommended that the current complex trust and life interest provisions relating to the rest of the estate are to be simplified. Instead, the spouse will split the remaining estate with the children outright. This view was highly supported in the consultation however ideas to deal with the family home separately received little support and have been shelved.

The full report can be downloaded from http://www.justice.gov.uk/lawcommission/publications/intestacy.htm

Alan Porter, of The Will Centre, said after the release of the report, “Whilst these proposals are welcome, there is NO substitute for a professionally drafted Will. To leave things to chance is not really an option. These proposals will take some time to be discussed and brought into law so in the meantime you have no or very limited protection if you cohabite.”

To make sure your loved ones inherit as YOU want and NOT as the LAW decides call The Will Centre Team on 01752-607040 or email Alan at alan.p@thewillcentre.com

Anyone making a Will in January 2012 will be able to benefit from a minimum discount of £25 of the price of making a Will by quoting ‘Blog Jan 2012’ Offer.

Do I need a cohabitation agreement?

It would hardly surprise you to know that most cohabiting couples who live together don't have a written agreement governing their rights. But do you really need too?

If you are living with, or are deciding to live with your partner but are unmarried, then no matter how long you have been together, you don't have the same rights as married couples and you may have little legal protection in the event that you split up. There is no such thing as ‘common law wife/husband’, well not since 1753 and I don’t mean 7 minutes to 6pm!

In the case of property, for example, if you have a joint rental agreement or mortgage, it's up to the both of you to decide what will happen if you break up. However, if you've been living in your partner’s house, then it will not be as easy and you may be left without a place to live, even if you have been contributing to the mortgage, paying rent or paying your way in other ways (e.g. paying the utility bills, staying at home to look after the children, caring for your partner, etc.). If your name is not on the deeds then you have no right to the property!

This is where a cohabitation agreement can help. This is a contract, between two people who live together, which sets out their agreement on the division of their combined assets. It is essential for people who live together but are without the protection afforded by marriage or civil partnership. The agreement states who owns what and who contributes what and is not only important if the relationship ends, but also if one partner dies. Having a cohabitation agreement makes the consequences of splitting up a lot easier to deal with and a LOT CHEAPER without having to incur expensive legal bills!

In England and Wales there is no formal legislation which makes cohabitation agreements legally enforceable, but given that a cohabitation agreement is a contract existing between two parties, so long as it complies with the basic requirements of contract law, it should be legally enforceable. Therefore, each member of the couple is advised to take independent legal advice as to the terms and conditions of the agreement before signing it.

A cohabitee or civil partner who was in some way financially dependant upon their partner and who finds themselves without adequate provision, either because their partner died without making a Will or because a Will was made but left insufficient provision to the partner, has a potential claim under the Inheritance (Provision for Family and Dependants) Act 1975.

A person wishing to make a claim under the Inheritance Act must do so in very strict time limits. The person applying asks the Court to investigate the assets left by the deceased and the provision made for the applicant. The applicant will ask the Court to find that insufficient provision was made and that this should be rectified.

How much better it is to avoid all that hassle and make a cohabitation agreement.

Contact us for more information.

Twitter

You can now follow us on Twitter by texting:

follow thewillcentre

to 86444

Son Contests Millions left to Chihuahua

The son of millionaire socialite Gail Posner has launched a challenge against the distribution of his mother’s estate after claiming that she was manipulated into changing her Will in 2008 to leave her fortune to her dogs and hired help.

The Will gives her three dogs the right to live in her seven bedroom Miami mansion until they die. It also leaves $27 million to her maids, bodyguards and personal trainers and allows them to remain in the house rent free.

Her son claims that his mother ‘would never have done this unless she was under extreme influence’. Ms Posner was a victim of childhood incest and spent her life battling addiction to drugs and alcohol. Court documents describe her as being ‘a deeply disturbed recluse with serious emotional and psychological problems stemming from her history of being sexually abused’.

There were allegations that, as her health deteriorated following her diagnosis with cancer in 2005, she was imprisoned in her house and cut off from her family. Her son alleges that when the changes were made to her Will shortly before her death she wasn’t mentally capable and was blackmailed by her employees. Her son has produced video evidence from his last visit to his mother’s house where she claimed that her staff were trying to kidnap and kill her and asked her son to get her away from them.

Her son is also claiming against the loss of a $100 million trust fund that was designed to pay the income only to Ms Posner during her lifetime, leaving the capital to her children. At the time of her death she had received the money from the fund and the trust was closed in 2008. He is claiming that distributions made to his mother were not in accordance with the terms of the trust or in accordance with the wishes of the settlor. The company concerned intend to vigorously defend themselves against any allegations. Further hearings are scheduled for later in the year.

Choosing Executors Carefully

A recent case has once again highlighted the importance of clients choosing their executors with care. The case involved an executor who ‘went too far’ and was sued by the beneficiaries for failing to administer the estate.

The executor was a friend of the lady who died in 2006. Under the terms of the Will she gave a right of occupation of her property to another friend then left her estate to be divided between three animal charities.

The charities, on becoming aware of their entitlement under the Will, made enquiries of the executor to establish their entitlement. The executor supplied them with a copy of the Will and a letter apparently signed by the life tenant expressing that she wished to stay in the house. The charities made repeated enquiries but the executor provided incomplete responses and a valuation that was much lower than those carried out by the charities.

Now suspicious by the executor’s actions they made further enquiries and were shocked to find out that the life tenant had actually lived in sheltered accommodation for quite some time and that the executor was currently residing in the property. As beneficiaries, the charities applied to have the executor removed by the court and replaced with a professional executor. Not only did the court agree but also ordered the executor to pay the costs incurred by the charities in sending repeated solicitors letters and obtaining valuations.

Although clearly within their rights in this case charities are notoriously aggressive where they are appointed beneficiaries of an estate. Leaving a fixed sum to a charity is preferable however caution should be exercised when deciding the amount as a specific bequest is paid in preference to any residuary payment meaning that, potentially, they may be nothing left for the ultimate beneficiaries.

The case also highlights the benefits of having a professional executor appointed, even if it is alongside the clients chosen lay executors. Using a professional dispels the possibility of leaving an executor open to aggressive tactics used by charities and any potential claim against them personally, even for innocent mistakes.

At The Will Centre, we offer the service of being appointed as a professional executor, and therefore we can administer the estate quickly and efficiently for clients. If you would like The Will Centre to act for you in the administration of an estate, including a person who had died, then please call us on 01752-607040.

Happy New Year

As 2009 draws to a close and we head into 2010, The Will Centre Team would like to wish you a Happy New Year.

We have some very exciting developments to announce in 2010 but in the meantime we hope you enjoy the remainder of the festive break.

Alan, Barry, Mandy & Ray.

A New Tax Year, a New IHT nil-rate band

The 6th April 2009, is the start of the new tax year. The Inheritance Tax (IHT) Nil-rate Band increases from £312,000 to £325,000 per individual.

An increase of £13,000 in the band at an IHT rate of 40% means a potential additional IHT saving in the new tax year of £5,200 for an individual and £10,400 for a married couple or registered civil partnership where the survivor is able to claim both their own and the transferable nil-rate band.

The nil-rate band is due to increase to £350,000 per individual on 6th April 2010, but with the current economic situation and a budget due soon it may be that this increase is under threat.

For advice on saving IHT or using the transferable nil-rate band option please contact The Will Centre on 01752-607040.

Probate Scams

Please be aware that there are currently several Probate scams in operation via the Internet. Many of these will inform the recipient that they are the beneficiary of a substantial legacy but will ask for fees and/or taxes in advance of sending more information or the release of funds.

These will always be fraudulent and on no account should you make any payment or transfer any funds. You can obtain further information and advice concerning such scams on www.met.police.uk/fraudalert You will also find information about reporting such activity to the police, as the police may be able to close down the e-mail accounts concerned.

Alan Porter, of The Will Centre, says this follows the typical scam tricks of enticing you to part with money up front. Of course you never should have to pay up front as a reputable firm will take any fees from the estate of the deceased. The Office of Fair Trading also has information on scams at http://www.oft.gov.uk/oft_at_work/consumer_initiatives/scams/

If you need advice on Probate then please call The Will Centre on 01752-607040. We offer a FREE, no obligation, 30 minute interview at our offices.

HMRC Phishing Attack

Banks have been made aware of the following phishing attack on HM Revenue & Customs (HMRC).

A bogus email claiming to be from HMRC is telling recipients they are due a tax refund and asking for account or credit card details so that a (fictitious) tax refund can be paid.

HMRC have confirmed that they will only ever contact customers in writing to confirm tax refunds.

Should you receive such an email, do not open, click on the website link or provide any confidential details and immediately forward it to phishing@hmrc.gsi.gov.uk for investigation.

Happy Christmas/New Year

Cleaner fails to clean up Will properly!

A CLEANER who faked her landlord's will to make herself the sole beneficiary of his £125,000 estate was last night behind bars. Ilona Zimon, of Oxford, faked Dusan Duvnjak's will to eliminate his two children and make herself the only heir to his three houses, car and other belongings.

The 50-year-old also changed all references to herself in the will as Mr Duvnjak's "beloved partner" and ordered her name should be the only one included on his headstone.
Mr Duvnjak's family became suspicious after Zimon faxed them a copy of the will shortly after his death in January 2006 showing his two children - Marko, 23, and Mara, 25 - had been disinherited.

They employed a handwriting expert who examined the document and found Mr Duvnjak's signature was an exact copy of the one on the original will - something that is impossible to recreate naturally and could only be done by photocopying or tracing. Mr Duvnjak's ex-wife Diane, the mother of his two children, said her former husband's houses had been worth about £650,000 but were heavily mortgaged. he 51-year-old, of Shelford Place, Headington, said it had been a battle to prove the will was a fake. She said: "It is an embarrassment to have to go through all of this. It is very personal. It is a disbelief that somebody would take a person that is so vulnerable and say that they cared for him and yet hurt the people that he actually cared most about. People do make ad-hoc wills, but this was a document of such appalling taste that it actually made some members of the family feel like they were going to vomit."

Builder and decorator Mr Duvnjak, known as Denis, died in January 2006 from a fall after a long battle with alcoholism. His brother David, 62, added he believed Zimon had been planning the will forgery for years. He said: "I thought that was the only reason she was living with him. I am pleased justice has been done." Zimon had denied forgery but was convicted by a jury after a trial at Oxford Crown Court last month.

Alistair Grainger, defending, said Zimon had no previous convictions and was believed by many of her employers to be trustworthy. Sentencing her to 12 months' jail, Judge Patrick Eccles said: "What is plain is that the family were deeply distressed at having their names taken off the headstone. The court has to take a serious view of this offence because a will is a public document in which the public have to have trust. You photocopied the signature on the original will. You were due to inherit 20 per cent but plainly were not satisfied. You were not under financial or psychological pressure and therefore, based on the jury's verdict, I must find that you did it out of greed."

The jury cleared Zimon's co-accused, Soossapillai Ramesh, 44, of Peckham Rye, London, of forging a will. Speaking after the case, Det Con Mark Lacey said it was the first case involving a forged will that anyone at Oxford CID could remember. He said: "I think the sentence shows that the courts have taken attempts to forge wills very seriously."

The amount of money a spouse receives if their partner dies without making a will could increase, the government announced in 2005.

If a person with children dies without leaving a will, their surviving spouse will receive only the first £125,000 of their estate. If there are no children but there are surviving parents or siblings the spouse will receive £200,000.

The Department for Constitutional Affairs (DCA) estimates that under the intestacy rules, in up to 9,000 cases each year a surviving spouse will not receive all of their partner's estate.

In 4,000 of these cases, the family home may have to be sold, so that money from the estate can be paid to the children or other relatives.

A consultation paper published in 2005 by the DCA proposed that the limits be increased so that, where children are involved, a spouse can receive £350,000 of an estate and where there are no surviving children they can receive £650,000.

"The death of a spouse is always a traumatic event, but can be particularly so where they die without leaving a will," said the minister for civil justice, Baroness Ashton in 2005. "In these cases, the financial future of the widow or widower and any children will depend on how much money they can inherit under the intestacy rules."

The consultation paper suggests that the payment levels in 2005, which were set in 1993, may now be out of date, primarily due to the increase in house prices. According to 2005 figures the average house price now stands at £162,411 - some way above the £125,000 limit.

However, the DCA is concerned about cases where the legacy paid to the surviving spouse could mean that there are no funds left to distribute to any children. This can be particularly contentious when the deceased has children from an earlier relationship.

In 1993, more than 90% of estates were worth less than £125,000 and 98% of estates were valued at under £200,000. In 2005 these figures are 59% and 79% respectively.

Research carried out in March 2005 by insurer Standard Life suggested that 57% of adults in the UK had not drawn up a will, including 40% of people with homes worth more than £150,000.

So what has happened since this was proposed in 2005. Alan Porter, of The Will Centre, says “Nothing at all has changed! The levels set in 1993 and that were being reviewed in 2005 still apply! If you consider it is almost impossible to buy a house for under £125,000 you can see that there is a real problem. The best way to avoid any problems is to make a Will.”

Appointing Guardians

The provision for a guardian in a Will is something which should be considered by all parents with children under the age of 18. The law relating to Guardianship, contained in the Children Act 1989, is concerned with the welfare of a child whose parents have died. The law allows a parent with parental responsibility, or anyone who is a guardian of a child already, to appoint a guardian in the event of their death.

This means that a father without parental responsibility (PR) cannot appoint a guardian, neither can a person with PR who is not a parent.

The appointment must be made in writing, dated and signed and is most commonly done under a Will.

When the guardianship comes into effect depends upon whether or not a residence order is in place when one of the parents dies. Where an order has been made in favour of the parent who has died the guardianship will come into effect on their death, even if they predecease the other parent who has PR. Where there is no residence order in place the guardianship will only come into effect when the last remaining parent with PR dies. Any appointment by the first parent to die will not come into effect until the second parent has died.

The distinction between the above is based on the fact that a court, when making a residence order, may have decided that the other parent is unsuitable and enabling the parent with the order to appoint a guardian may in effect protect the child.

Where more than one guardian is appointed, and any decisions relating to the child cannot be resolved between the parties, they can apply to the court for a residence order.

The person appointed as a guardian is not subject to approval by the court or a local authority, in fact, there is very little control over the appointment. A marked contrast with the rigorous checks carried out for fostering or adoption. The court does have the power to revoke a guardianship and this power can be used where the guardian is unsuitable. It is still debateable whether this power to revoke offers enough protection and whether a more effective measure would be for potential guardians to undergo some kind of vetting process.

Where both parents die without appointing a guardian (i.e. intestate or without provision in their Wills or other documents) the court can appoint a guardian for the child. The court will also appoint a guardian where the one appointed by the parents is unable or unwilling to act. This will usually follow an application to the court by the proposed guardian although the court may act of its own motion as well. In deciding who to appoint the child’s welfare is the paramount consideration.

The appointment can be revoked by a subsequent appointment (unless it is clear that the second appointment is in addition to the first), revocation by a signed and dated document, revocation of the Will in which the appointment is made or, where a spouse is appointed, by divorce. The appointment may also be revoked by the court on application by anyone with PR or the child themselves.

A guardian may disclaim the appointment within a ‘reasonable time’ which must be in writing.

Although a guardian can be appointed in any written document there are certain advantages in appointing in a testamentary document as these documents are more likely to be preserved, easily identifiable and will be under consideration by those dealing with the estate on the death of the parent.

Negus v Bahouse

The lover of a wealthy business man who committed suicide before fulfilling a promise to marry her on the QM2 has won a High Court battle with his family over his £3 million estate.

Multimillionaire Henry Bahouse and former dental nurse Cyd Negus had a ‘flamboyant lifestyle’ before his death in 2005. His Will didn’t provide for 50-year-old Ms Negus, who therefore claimed for financial provision to be made for the rest of her life from his estate.

Mr Bahouse’s family contested the claim, arguing that Ms Negus had already received the proceeds of a life assurance policy, taken out by Mr Bahouse for her benefit, and a half share in a Spanish property. Together, these were worth in excess of £600,000. According to Ms Negus, she and Mr Bahouse were intending to get married and even hoped to start a family.

According to Mr Bahouse’s family, the couple were on the verge of breaking up and Mr Bahouse had no intention of marrying Ms Negus.

In the view of Deputy High Court Judge Roger Kaye QC, they had lived together as husband and wife and she and had a reasonable basis for believing that her future financial needs would be met by Mr Bahouse. He awarded Ms Negus the ownership of the flat she had shared with Mr Bahouse (valued at approximately £400,000) and a lump sum of £240,000. The balance of the estate, worth about £2m, went to Mr Bahouse’s family – mainly to his son Gordon.

Alan Porter of The Will Centre said, “The case raises some interesting points. The first and most obvious is that this kind of stress and heartache could be avoided if people make a Will and keep it up to date. That way they can ensure their estate is divided according to their wishes. The other point is that it is possible in certain circumstances to successfully challenge a Will if a person feels their reasonable expectations to inherit have not been met, using the Inheritance (Provision for Family and Dependants) Act 1975 as amended.”