Frequently asked questions
Is an enduring power of attorney still valid if one attorney has signed after 1 October 2007?
If there is only one attorney appointed then the answer to this question is no. The enduring power of attorney is not valid as both the donor and the attorney had to sign before 1 October 2007.
If there is more than one attorney then those attorneys who signed before 1 October 2007 can still act as attorneys under the power. It is only the attorney who signed after 1 October 2007 who cannot act.
Do my attorneys have to make decisions together?
You can decide how you want your attorneys to act for you. You have the choice of whether you appoint your attorneys jointly or jointly and severally.
Jointly means they have to decide on everything together. Once cannot make a decision on their own. You need to think carefully before you decide on this option. If one of your jointly appointed attorneys dies, is unwilling or unable to act then none of your attorneys can act and your power of attorney is effectively useless.
Jointly and severally means your attorneys can act together or independently if and when circumstances require them to, or it may be your choice that jobs are carved up between your attorneys so you have the best qualified attorney doing the most appropriate jobs.
Can my attorney look at my will?
Whilst you have capacity you remain in charge of all of your property. This includes your will. Your attorney has no right to see your will whilst you are capable. In the event you become incapable of managing your property and affairs your financial attorney can look at the terms of your will.
If you do not wish this to happen you should put a specific restriction in your power of attorney. Be careful however in making this decision hastily as it could lead to your attorney doing something with an asset that you have specifically given away in your will!
Who can witness my will?
You need to make sure that you have independent witnesses. As we are overly cautious Argo recommends that you do not use anyone who could benefit under your will or their spouses.
We prefer totally independent witnesses. We also do not like the witnesses to be married. There are ocassions when the witnesses need to give evidence in court. If the witnesses are married and move away we may never find them!
You can use work colleagues, neighbours or why not ask your friendly lawyer who drafted the will!
I am about to divorce my husband. Is my will still valid?
Yes it is. However you need to be very careful with the wording in your will so it might be best to make a new one so your soon to be ex is not mentioned.
The Wills Act states that any gift to a former spouse is to be treated as if they had died at the date of the divorce so any gift you have left will not take place. However if the wording in the will indicates that the gift to your ex was to happen even after your divorce then the gift will still stand.
REMEMBER that this only applies from the date of your decree absolute, not before. If you die during your divorce you are still married and therefore any gift to your ex will take place.
We would always advise that as soon as you separate or begin divorce proceedings you put a new will in place so that there is no potential problem.
I have found my mother's will but it is not dated. Is it valid?
To answer this we have to look at the rules surrounding signing wills set out in the Wills Act. This piece of legislation says that for a will to be valid it must:-
1. be in writing
2. be signed by the person making the will
3. be clear the person signing the will intended to give effect to the will by signing it
4. have been signed by the person making the will in the presence of two or more witnesses present at the same time
5. be signed by each witness
There is no legal requirement for a will to be dated and the lack of a date does not invalidate a will. It is likely that the Probate Registry will require evidence to confirm when it was signed. This usually takes the form of an addidavit of due execution which is prepared at the time a Grant of Probate is obtained.
My will is so old it has fallen apart!
Well, initially we would say that it is clearly overdue for a review then! For it to have fallen apart it must be really old and therefore it is likely to be older than your children and grandchildren who may not feature in it!!
But, don't fret your will is not invalid just because it has fallen apart. Gather the papers carefully together and put them in a secure folder as it is still a valid document. Whilst it is preferrable for a will to be bound, as it demonstrates it has not been tampered with, if a Grant of Probate is required the Probate Registry will require evidence of its condition to prove that it is as it always was. This will be done by an affidavit of plight and condition which will need to be signed by the executor to confirm the state it was in when they found it.
We think you need a new will!
I'm not keeping my married name when I divorce and am going to change it. Do I need to change my will to?
Just because you change your surname you do not need to change your will. A deed of name change simply changes your name but does not alter your identity.
In the future it will be important for your executors to show that the will they have belongs to the correct person so they will need to make enquiries in all of your names when they try to identify your assets.
It would be sensible to keep a copy of your deed of name change with your will or if it is not too much trouble get the will amended to show your new surname and get it resigned.
Oh and by the way I have a house in France!
Not a problem! Your will simply needs to be restricted to deal with assets in England and Wales. This is an easy issue to solve.
You must make sure however that your will is worded to ensure it does not revoke your French will.
If you don't have a French will then you MUST HURRY UP AND GET ONE!