For centuries, pets have held a special place in human hearts and homes. Whether it’s the wag of a dog’s tail at the sound of your voice or the comforting purr of a cat curled up beside you, animals have a unique ability to offer companionship, loyalty, and unconditional love. They’re not just pets, they become family and, for many, the commitment to a pet isn’t just for the moment – it’s for life.

The UK is undeniably a nation of animal lovers, with 51% of adults owning at least one pet. Yet, despite this, only 28% of UK adults have made a Will. This gap leaves many pets vulnerable. If a pet owner dies without a Will, it falls to the estate’s administrators, determined by the intestacy rules. Unfortunately, the person legally entitled to administer your estate may not be the person you would choose to care for your beloved companion.
By including clear provisions for your pets in your Will, you can ensure they are placed in safe, loving hands and that their ongoing care is planned and funded according to your wishes. In this article we explore the options available to you in respect of making alternative provision within your Will for your pets, depending on the circumstances.

Option 1: Gifting your pet to a family member or friend

This is one of the simplest options available and involves a gift in your Will to a specific individual, that you trust implicitly, to look after them when you are not around. This gift could be coupled with a monetary gift to assist with bills, food, insurance etc., but this is not strictly necessary and the monetary aspect would not be legally binding on them to use for those purposes, it is usually a wish (which is why it is important to give careful consideration when deciding who you are making the gift to).

Option 2: Charities

In the event that you do not have any family or friends who you trust, or who are able due to the circumstances, to look after your pets, then another option is to consider leaving your pet to a charity of your choice. There are a number of charities that can assist with rehoming them to a loving home and again, this could be coupled with a monetary gift to the charity to assist with costs etc.

Option 3: Trusts

This option is more complex and while the law typically requires that all non-charitable trusts have identifiable beneficiaries with legal standing (i.e. legal personality), there are rare exceptions. One such exception is known as a “trust of imperfect obligation.” These are unusual types of trusts where there may not be a human beneficiary who can enforce the trust – yet the law still allows them under specific circumstances.A key example of this is a trust for the care of specific animals. In effect, the law allows someone to leave money in a trust specifically for the upkeep and well-being of a beloved pet. This was seen in an old case of Pettingall v Pettingall (1842) where provision was made for the deceased’s horse and held to be a valid gift.

Option 4: Letter of Wishes

Finally, no specific provision is made within the Will which would result in your pet forming part of the residuary estate. A letter of wishes could then be prepared to sit alongside your Will, detailing your wishes in terms of who should look after your pet, together with any other specific wishes. This letter is not legally binding however so if there are any concerns regarding a dispute or someone being suitable to look after them, for example, it is worth making specific provision within your Will as this is legally binding.

For further advice and assistance please contact our Wills, Trusts and Probate team on 01908 660966 or email info@franklins-sols.co.uk.

 

Life is unpredictable, and while we naturally hope for the best, preparing for the unexpected is crucial. We often focus on things like retirement savings, property, and our estate, but the prospect of losing mental or physical capacity — even temporarily — is something many people overlook.

Preparing for potential incapacity isn’t just about financial protection, but also about ensuring that our wishes are respected when we can’t speak for ourselves. Illness, injury, or the natural effects of ageing can sometimes leave us vulnerable, so having a plan in place to manage both health and financial decisions during such times is incredibly important.

It’s almost like putting a safety net in place — not because we expect to fall, but because if we do, we want to be certain it’s there to catch us, and that it will catch us in the way we would have chosen.

One of the most empowering things you can do is take control of the situation by planning ahead. A Lasting Power of Attorney (LPA) is an essential legal document that allows you to appoint one or more individuals, known as your ‘Attorney(s)’ to make decisions on your behalf if you either authorise them to act whilst you have capacity (this option is only available for your financial LPA) or if you become unable to do so yourself, whether due to illness, injury, or incapacity. There are two main types of LPAs:

1. Property and Financial Affairs LPA – which covers decisions relating to your finances, property and other assets.

2. Health and Welfare LPA – which covers decisions about your personal health, where you live, medical care, day to day activities and well-being.

Here are some of the key reasons why preparing a Lasting Power of Attorney is important:

1. Control over who makes decisions for you

Without an LPA in place, if you lose mental capacity, decisions about your care or finances could be made by someone that may not have wanted involved, such as the Local Authority, family member or even a friend.

2. Peace of mind for you and your loved ones

Having an LPA in place gives both you and your family peace of mind. If something happens and you’re no longer able to make decisions, your appointed Attorney(s) will already be empowered to step in. This reduces stress and uncertainty for your family during a challenging time.

3. Prevents delays and possible complications

Without an LPA, if you lose mental capacity, your family might have to apply to the Court of Protection for a deputyship order. This process can be lengthy, costly, and stressful. An LPA avoids this situation, as it gives someone immediate authority once the document has been registered to step in and act on your behalf, when the circumstances arise.

4. Flexibility

You can specify exactly what decisions you want your attorney to be able to make. For example, with the Property and Financial Affairs LPA, you can choose whether your attorney can make decisions about your property immediately or only after you’ve lost mental capacity. Although this option isn’t available for the Health and Welfare LPA, you may wish to include preferences of instructions, which need to be carefully worded, on things like medical treatment, care options and even whether you want your attorney to make decisions about life-sustaining treatments.

For further advice and assistance please contact our Wills, Trusts and Probate team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk.

The recent case published regarding the late Margaret Baverstock highlights the importance of ensuring that the legal requirements to prepare and sign a Will are adhered to. In this case, the Judge concluded the deceased lacked the required capacity and that the Will signed eight days before her passing had not been validly executed commenting as follows:

Comments regarding Testamentary Capacity:

• ‘The deceased was also extremely frail and on her deathbed. In these circumstances, it was necessary to question Margaret to ensure her understanding.’

• ‘Merely reading out the document and asking if she understood it was not enough.’

Comments regarding the signing of the Will:

• ‘I am satisfied that the deceased had no idea what was going on. She was unable to act independently and, although she responded with a ‘yeah’ or even a grunt when addressed as mum, that was simply a response to being directly addressed and didn’t indicate consent to signing the Will or acknowledging its contents.’

• ‘She looked completely blank during the reading of the Will and on all, save one occasion, she only responded to her daughter.’

• ‘At no point did Margaret ask Lisa for help in signing the Will or direct her to sign the Will on her behalf. Nobody ensured that she understood what was happening by asking her questions about the contents of the Will or asking her to tell them her wishes, and she cannot fairly be said to have signed the Will.’

As there was no previous Will, the Judge confirmed that as the Will was in fact invalid the intestacy rules applied which resulted in the estate being split equally between the deceased’s two children, one of which would have received nothing if the validity Will had been upheld.

To assist with mitigating claims being made in respect of the validity of a Will being prepared, I have outlined some key points to bear in mind when preparing and signing your Will:

1. Capacity to Make a Will

• You must be at least 18 years old.

• You must be mentally sound and capable of understanding the nature of the Will, what it contains, and the consequences of making the Will. If there are any concerns, then a capacity report will usually be requested by the Legal Advisor. They will also prepare a detailed note on file documenting the circumstances in respect of the preparation of your Will, reasons why the Will was being prepared in that way and their considerations in terms of capacity, adding a layer of protection to your Will.

2. Signing the Will

• The Testator must sign the Will in the presence of two independent witnesses. These witnesses must be present at the same time and watch you sign the Will.

• Witnesses cannot be beneficiaries (people who stand to inherit from your Will), or the spouses/civil partners of beneficiaries, to avoid any conflict of interest.

• If you are unable to physically sign the Will, you can have someone sign it on your behalf in your presence, but there are additional legal requirements to comply with depending on the circumstances.

3. Witnessing the Will

• After you sign the Will, your witnesses must sign the Will in your presence and in the presence of each other.

• The witness should add their full name, address, and occupation next to their signature.

4. Changes to the Will

• If you want to amend your Will, you can create a codicil (a legal amendment to your Will) or make a new Will entirely. If you’re changing your Will, you must follow the same signing and witnessing procedures as before.

• It’s also a good idea to keep your Will updated to reflect any changes in circumstances (e.g., marriage, divorce, births, or deaths).

Here at Franklins Solicitors we offer a comprehensive Will writing service.  For further advice and assistance, please contact our Wills, Trusts and Probate team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk.

If you are thinking of going through a divorce, have been divorced or are separated but legally married, it is important to consider what will happen to your Estate when you pass away and whether it is in line with your wishes.

What happens to my Will whilst I am waiting for my divorce to be finalised?

If you are currently going through a divorce and are waiting your divorce to be finalised, your existing Will is still valid. If you have appointed your spouse as an Executor and/or Trustee and they are a beneficiary in your Will you should consider doing a new Will to reflect your current wishes.

If you do not have a Will, your Estate will pass under the rules of intestacy which ultimately means your spouse will inherit most or all of your estate.

What happens to my Will once my divorce has been finalised?

Once your divorce has been finalised, your Will is still valid. However, your ex-spouse will be treated as though they have passed away. A divorce does not automatically revoke a Will.

If you have appointed substitute Executors and/or Trustees and have specified default beneficiaries, this will take effect.

What happens if I am legally married but separated from my spouse?

Your existing Will will remain valid if you are separated but legally married. Therefore, it is important to consider doing a new Will if your current Will does not reflect your wishes.

What happens if I remarry?

Marriage automatically revokes a Will unless the Will specifies that it is in contemplation of marriage.

If you are thinking of getting remarried or have remarried, you should consider doing a new Will.

For further advice and assistance please contact our Wills, Trusts and Probate team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

 

A question we are often asked is whether “prenups” – or pre-nuptial agreements – are enforceable. Recent case law has confirmed the court’s position is that valid pre-nuptial agreements will be upheld if challenged on divorce. That then begs the question: what makes a prenup valid? We explore that topic in this blog.

Honesty is arguably the cornerstone of any healthy relationship, and this principle holds true when drafting a prenup. Both individuals should provide complete and accurate information about their individual financial situations, including their assets, debts, income, and liabilities. A lack of transparency could undermine the validity of the agreement and might mean the prenup will not be upheld.

The law surrounding assets on divorce and what assets will and will not be taken into consideration can be confusing. Assets which you may believe are entirely “yours” may in fact be deemed matrimonial by the court, and therefore available for sharing on divorce. A well drafted prenup, however, can potentially impact this. The prenup should outline which assets are to remain separate and which will be considered joint matrimonial property. Properties, investments, businesses, and any other valuable assets – acquired both pre and post marriage – and what should happen to these in the event of divorce – should all be taken into consideration.

The move away from traditional gender roles has undoubtedly impacted the number of spousal maintenance claims. However, a prenup does not prevent provision being made for spousal maintenance in the event of relationship breakdown, rather it allows the parties to define the terms and conditions under which one party might be entitled to financial support in the event of divorce, considering factors like length of the marriage, earning potential, and contributions to the marriage.

A prenup can also provide for how you and your future spouse will share financial responsibilities during the marriage. This could include management of joint accounts, payment of household expenses, and decision making on major financial issues. Discussing expectations regarding lifestyle, such as career changes, relocations, or educational pursuits can also be helpful. Thinking these things through before the marriage may seem to some to be ‘unromantic’, but ultimately ensures both parties have thought through and been advised properly on what the legal position will be in the event of the marriage, and then in the event of divorce.

Even with a prenup, the future of yours and your spouse’s future remains uncertain in many ways. Circumstances change. For example, when entering into the agreement, both of you may be in full time employment and earning a similar salary. However, on having children, one partner may give up their job to care for the family. It might be worth trying to envisage how this might impact and then look at provisions in the event one of you becomes a homemaker and as such has a lack of income from employment. Consider including provisions for modifying the prenup in the future to accommodate changes in financial status, family structure, or other significant life events. This can make the agreement more adaptable to the evolving needs of both partners, and more likely to be upheld by a court as valid. Some prenups include what lawyers like to refer to as “sunset clauses,” which stipulate that the prenup will expire after a certain period of time, for example after a certain number of years of marriage. This can provide reassurance that the agreement is not intended to be a permanent fixture, but something which would only be relevant were the marriage to break down in its early years.

Legal representation is a non-negotiable – it is imperative that both parties completely and fully understand the terms of the prenup and its consequences in the event of divorce. Both parties should seek independent legal advice, so that a solicitor can advise on the fairness of the prenup’s terms. If the parties have not sought independent legal advice, the terms of the prenup may be deemed invalid by the court, as the spouse who would be disadvantaged by the agreement (and would favour better under the law on divorce) may well seek to argue that, in the absence of independent legal advice, they did not understand the agreement.

Divorce cases always tend to turn on their own facts, but a prenup is likely to be given its intended effect by the court provided both parties acted freely, were represented, and the prenup is fair. That said, prenups can be a difficult topic to broach with a partner. We can help with how to pitch that discussion sensitively and collaboratively, and in such a way that hopefully your relationship will be strengthened rather than weakened during the negotiation and drafting process. It can help to think of a prenup as a kind of insurance policy for marriage. Using that analogy and comparing marriage to, for example, the purchase of an expensive car, is sometimes helpful. You would not dream of buying an expensive car but not getting it insured – even though you do not intend to write it off. Prenups can be viewed in the same way as that car insurance – you hope never to call upon it but it’s there should you ever need it – just in case.

Being honest and open about the legal and related financial implications of marriage, and what might come to pass were the marriage to end, is in our view something which should become more commonplace. Considering a prenup might feel unromantic but when such a high proportion of marriages end in divorce, some would say it is surprising they are not far more routine.

If you would like to discuss further whether a prenup would suit you, we offer an initial appointment for a cost of £195, during which we try to give you an understanding of your legal position and what the future might hold.

If you feel Franklins might be the right firm to help you following the breakdown of your relationship, and you would like to enquire about when your initial appointment could be scheduled, please contact our Family Law team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

Facing legal proceedings involving children can be a daunting and emotionally challenging experience. If you find yourself served with a C100 application under the Children Act 1989, it is crucial that you quickly try to get to grips with your rights and responsibilities. This blog post aims to provide you with an understanding into what you should do if you are served with a “C100 application” – and an insight into how to go about starting to navigate the complicated world of Children Act proceedings.

Understanding the C100 application – the C100 application is a court form used in family law cases within England and Wales, specifically under the Children Act 1989. This application initiates proceedings related to children, such as issues associated with living arrangements, spending time arrangements and parental responsibility. If you are served with a C100 application it means that someone – often the other parent – is seeking a court order in relation to your child or children.

Stay calm and seek independent legal advice – on receiving a C100 application, it is natural to feel overwhelmed and anxious. It is essential, however, to stay calm and avoid making hasty decisions. You need to respond, not react, and preferably through a solicitor. Seeking independent legal advice should be your first step. Consult an experienced family law solicitor who can guide you through the legal process, explain the legal position for both you and your child or children, and help you understand the implications of the application.

Read the application thoroughly – carefully read the C100 application and try to understand the nature of the orders the court is being asked to make. This document will outline the specific issues the applicant – probably the other parent – is bringing before the court. Take your time to absorb the information and take notes on anything you find confusing or concerning so that you are clear what you need advice on.

Respond promptly – the court will set a specific deadline for you to respond to the C100 application. Failing to respond within the stipulated timeframe might prejudice your position, so work closely with your solicitor to craft a well-considered response that addresses each point raised in the application and indeed puts any others you feel should also be before the court.

Attend any court hearings – it will be crucial for you to attend all and any scheduled hearings. Failing to do so could negatively impact the court’s perception of your commitment to the process and indeed your child or children. Follow your solicitor’s advice on presenting your case effectively, providing input promptly and completely when asked.

Comply with court orders – the court is likely to issue orders setting out various deadlines during the proceedings, and you and your solicitor if applicable should be aiming to comply with those to avoid legal complications and / or harming your position.

Focus on the child’s best interests – your solicitor should provide you with specific advice on your legal position, and the prospect of your position rather than that of the other parent being accepted by the court. You are well advised though to remember that these proceedings are to focus on the child or children and what is in their best interests, rather than what works best for you or the other parent. Your family will be under the spotlight and that can be uncomfortable, but the court will genuinely be trying to understand your family dynamic and circumstances and what living and spending time with arrangements will work best.

Not many relish the prospect of contacting a solicitor, and here at Franklins we are realistic about that. We try to make the process of instructing us as easy and pain free as possible. We offer an initial appointment for a cost of £195, during which we try to give you an understanding of your legal position and what the future might hold.

If you feel Franklins might be the right firm to help you following the breakdown of your relationship, and you would like to enquire about when your initial appointment could be scheduled, please contact our Family Law team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

In the realm of estate planning and inheritance, intestacy laws play a crucial role in determining how a deceased person’s assets are distributed when they pass away without a valid Will. These laws are in place to provide a framework for inheritance when the deceased did not express their wishes through a Will. In this context, the concept of a “statutory legacy” has gained prominence, representing a fixed amount or portion of the estate that is guaranteed to be passed on to certain beneficiaries, usually the surviving spouse or civil partner. Recently, there have been discussions and changes to the intestacy statutory legacy, aiming to ensure a fair distribution of estates.

Defining the Intestacy Statutory Legacy

The intestacy statutory legacy is the minimum amount or share of the deceased’s estate that is protected by law to be given to certain individuals, even if there is no Will in place. This amount is reserved for the spouse or civil partner of the deceased, recognising their rights and needs in the absence of explicit testamentary instructions.

The Need for Change

Over time, societal norms, family structures, and economic conditions evolve, necessitating updates to these laws to reflect the changing landscape. One common issue that has arisen is the sufficiency of the statutory legacy, particularly in scenarios where the value of the estate is high or when the surviving spouse or civil partner faces financial challenges. In response, lawmakers have revisited these laws to ensure they adequately address modern concerns.

Recent Reform

Following a recent review, the statutory legacy has increased to £322,000 for deaths which occurred on or after 26th July 2023. For deaths prior to this date, but between 6th February 2020 to 25th July 2023, the statutory legacy remains at £270,000.

In essence, this means that should you pass away without a Will in place from 26th July 2023 onwards, the first £322,000 (the statutory legacy), together with all personal possessions, will pass to the surviving spouse or civil partner and then the remainder of the estate will pass as to 50% for the surviving spouse or civil partner and the remaining 50% will be divided between any children equally.

It is important to note that if there are no children, then the entire estate will pass to the surviving spouse or civil partner, which remains unchanged.

Is a Will still needed?

Despite this recent change, it is still important to have a Will in place as the intestacy rules still do not take into account more complex situations. For example, the intestacy rules do not provide for cohabiting couples so, for illustrative purposes, if you own a property as tenants in common with your partner, and you pass away without a Will in place, your share of this property will not pass to the survivor of you but instead via the intestacy rules which may mean that the survivor has to sell the property to release the equity, leaving them in a vulnerable position.

A Will also does a lot more than allow you to decide who is to benefit from your estate. It will allow you to appoint guardians of any minor children, leave specific gifts to certain individuals or charities and allows you to appoint individuals or organisations you trust to administer your estate effectively.

For further advice and assistance please contact our Wills, Trusts and Probate team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

 

 

Being a Private Client Solicitor, we meet with clients on a day-to-day basis to discuss the preparation of their Wills and estate planning. Sometimes when discussing these matters with prospective clients it is raised as to why they should instruct a Solicitor, when they can complete their Wills themselves online or at a lesser expense through a Will writer.

Our starting point is to always advise prospective clients that they are able to prepare their Wills as and how they wish but to always err on the side of caution due to issues that can arise if their Wills are not prepared correctly or specialist advice sought (depending on their personal circumstances). The Society of Trust and Estate Planners (STEP) have also recently warned of the same risks and highlighted the potential issues due to lack of regulation in England and Wales.

Ensuring that you have a professionally drafted Will in place adds a layer of protection to your Will, ensuring that potential claims are discussed, capacity is assessed and all options available fully explored. When a claim is made against an estate, this usually involves substantial legal involvement to resolve the matter, sometimes leading to thousands of pounds of fees being incurred which may have been avoided through careful planning, advice and safeguards being put in place.

If you would like to learn more, please visit here.

For advice in relation to writing a Will, contact our expert Team on 01908 660966 / 01604 828282 or contact the Private Client team.

Background

The Trust Registration Service (TRS) is a register of express trusts that have a liability to pay one of the following taxes: capital gains tax, inheritance tax, stamp duty land tax (SDLT) and stamp duty reserve tax. It was introduced in 2017 by the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 and set out in EU’s Fourth Money Laundering Directive.

The scope of the TRS was extended by the Fifth Money Laundering Directive implemented by the Money Laundering and Terrorist Financing (Amendment) Regulations 2020 which came into effect on 6th October 2020. Since the Fifth Money Laundering Directive, all trusts (whether taxable or not) need to be registered on TRS unless the trust is specifically excluded.

The trusts caught in the new scope include all UK express trusts and some non-UK express trusts, in existence on or after 6th October 2020.

In simple terms, an express trust is created by a settlor by way of a written document, such as a Will, deed, or declaration of trust, to take effect either during their lifetime or after their death. Trusts which are implied, arise on intestacy or are created by court orders are not express trusts which are subject to TRS.

Trustee Responsibilities

If you are a trustee of a trust that is registrable, you are expected to register the trust on TRS via the Government Website or arrange for an agent such as an accountant or solicitor to register the trust.

It is important to note that trusts that were in existence on or after 6th October 2020 but have been closed since need to be registered on TRS and then the trust record must be closed.

Declarations of Trust

Co-ownerships trusts such as declarations of trusts set up by joint property owners to hold property for themselves as tenants in common are excluded from TRS registration requirements. However, the exclusion does not apply if the legal and beneficial owners are not identical. For example, in a scenario where there are two people on the title of the property but three people have a beneficial interest in the property, the trust would need to be registered on TRS.

Penalties

HMRC may issue financial penalties on the failure to register a trust or for late registration of a trust.

There is no penalty for a first offence to register a trust or for late registration of a trust unless the failure to do so is due to deliberate behaviour of the trustee. Where HMRC finds that the failure to register a trust has been deliberate, HMRC may impose fines of £5,000 per offence.

HMRC have stated that they will initially adopt a light touch to penalties if trusts are not registered by 1st September 2022 given the new registration requirements.

More information about the TRS can be found in the HMRC Trust Registration Manual

For further advice and assistance please contact our Private Client Team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

A question I often get asked by clients when discussing Wills and the costs involved is ‘why do I need a Solicitor to prepare my Will when I can do one online or write a Will myself?’

A recent article published by the Law Society Gazette answers this question really well by highlighting that sometimes your personal affairs may not be as simple as you initially think, which is where bespoke legal advice is imperative to mitigate potential claims or issues arising in the future.

This may, for example, involve a discussion surrounding capacity, disinheriting certain beneficiaries, benefitting vulnerable family members/friends or protecting assets where you have children from different relationships. These are the types of issues usually highlighted during the initial appointment when taking your Will instructions and the options available going forward, together with potential avenues to mitigate any future claims, would be discussed in detail.

The Article goes on to discuss insurance differences between law firms and unregulated organisations offering a Will writing service. In some cases, the different level of insurance is so significant that in the latter case it could only cover the cost of the Will and not the actual long term loss that may result due to the level of advice provided.

For advice in relation to writing a Will, contact our expert Team on 01908 660966 / 01604 828282 or email Wills@franklins-sols.co.uk.