The right fall-back provisions to include in your Will
Posted on 2nd February 2019
When you are making a Will (for a fantastic price of £50 plus VAT! – No-brainer, right?) with your Preston Law Firm, MG Legal, they will need to know who you want to leave your estate to (or who you don’t want to leave it to, in some cases!). The common word for this is your beneficiaries.
However, something that you may not have considered is who you would want to benefit from your estate should your initial beneficiaries predecease you.
One example of a fall-back provision would be would be as follows:-
Mr and Mrs Smith are married. They want to leave their estate to each other, on the death of the first spouse. On the death of the second spouse, they want their estate to go to their daughter, Mrs Johnson.
Now, MG Legal, your local solicitors for Wills, would probably suggest adding one further fall-back provision (Mrs Johnson, the couple’s daughter being the first) to cover your estate as far as is reasonable. So, to follow on with our fictional example…
Mr and Mrs Smith talk about it and decide, as their daughter has no children, they would want their estate to pass to a few Charities. MG Legal, ask them to confirm how they want to split the estate, what charities they want it to go to, and what they want the money to be used for. If Mr and Mrs Smith don’t have any specific purposes for the money, the charities will usually be able to use it for their general purposes (i.e. for day-to-day running costs).
It might seem excessive for your local solicitors for Wills to suggest including two fall-back provisions, however this helps to make sure that your estate passes to who you want, and doesn’t just stop after the first provision. Whilst Preston Law Firm, MG Legal, wouldn’t necessarily suggest going any further than this, if you want to include ANOTHER fall-back provision and ANOTHER, then you can – it’s your choice.
Another point that MG Legal would carefully consider, is the intention of your fall-back provisions. For example, in a recent case, the Construction of Will Trusts was considered when, on the death of the testatrix, she had left her estate to her son. The clauses in her Will stipulated that if her son had predeceased her, the estate should pass to his children, or if he was childless, to her friend. Then, a further fall-back clause provided that if her friend should predecease her, then her friend’s daughter should inherit.
This seems pretty straight forward, right? However, the Testatrix died in 1973 leaving a Trust, which passed to her son. Her son died in 2014, leaving no children, and the friend had predeceased him in 1998. The Trustees of the Estate argued that as the son had survived past the friend, the estate had never vested in the friend (i.e. the friend had never taken her interest), and therefore the gift to the friend’s daughter would fail.
Having considered the situation carefully, the Court concluded that the deceased had been close to her friend, having no other close family or next of kin, and they were therefore satisfied that had the deceased been asked what should happened to the residue once her son and friend died, she would want it to pass to her friend’s daughter. The Court therefore held that the estate should pass to her.
If you’re still with us (and haven’t drifted off at that long explanation!), local solicitors for Wills would explain that we always seek to gain as much clarification as possible as to how your estate is to pass. We also ensure, wherever possible, that we have a face-to-face meeting with our clients to go through their wishes, and to clarify if there are any gaps they need to consider.
And, if you can’t do face-to-face appointment in our offices, we’ll arrange a home visit, or a telephone appointment – whatever works for you. Or, if you want to consider your options from the comfort of your own sofa, fill out our Will form online and we'll get on with the rest.
If you already have a Will, but have separated from your partner (contact Family Law specialists for a free-initial consultation to find out where you stand on 01772 783 314 or via email to firstname.lastname@example.org), or maybe even worry that it’s just been so long since you looked at it (did you actually think it was a good idea to gift your MP3 player to your bestie?!), call your local Preston Law Firm, and book in for a free initial consultation to discuss your requirements.
Our contact details can be found here, or if you are more of face-to-face kind of person, pop into your local office: Longridge, Garstang, or Lancaster.
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