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Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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- is it possible to look at my mother's DIY will

Resolved Question:

Hi - is it possible for you to look at my mother's DIY will & tell me if it is robust enough to pass muster upon probate and check for any faults - and maybe advise on how to clarify anything if necessary (with a codicil?). I am my mother's carer & see to her financial affairs.
Submitted: 1 year ago.
Category: Law
Expert:  Aston Lawyer replied 1 year ago.

Hello and thanks for using Just Answer.

My name is ***** ***** am happy to assist you with your enquiry.

If you send me a copy of the Will by an attachment, I will gladly look at it for you.

Kind Regards


Customer: replied 1 year ago.

Hi - thanks for reply. Hope this image has attached ok.

The important thing in the will is that (due to my personal debts) I do not wish to inherit but have a lifetime gift of the property, and after my death for that property to pass to a local charity or association (yet to be finalised).

Also, some provisions in the will need to be updated


Attachment: 2015-04-07_101303_kay_will_2009_txt.pdf

Expert:  Joshua replied 1 year ago.
Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

May I ask who are Sally and Andrew in relation to your mother please?

Am I correct to assume you are Steven mentioned in the will?

Finally may I ask if you are presently or believe you may be made subject to insolvency proceedings?
Customer: replied 1 year ago.

andrew is my mother's nephew, sally is my ex-partner (need to change this bequest).

no present insolvency proceedings, but owe Halifax largish amount due to house repossession about 20 years ago, debt now court order. so insolvency/bankruptcy always possibility.


Customer: replied 1 year ago.

+ Yes, I am Steven

Expert:  Joshua replied 1 year ago.
Thank you.The will appears to comply with the requirements of the Wills Act so appears to be a valid will for the purposes of obtaining probate.

It is very basic in that it provides for a discretionary trust but does not specify a perpetuity period for the trust nor the powers of the trustees under the trust nor does it say what happens if you pass away without leaving children when there is still money left in the trust. There could therefore be potential disputes regarding the extent of the trustees powers to appoint capital and income under the trust. In addition being a discretionary trust notwithstanding the above, a discretionary trust provides absolute discretion as to the trustees as to when and who to pay money to from the trust (providing that the trustees can only pay monies to you or your children. However there is no requirment as to when they must do so, so you put a great deal of faith in Andrew and Sally in that they will hold the purse strings to your inheritance.

It would be prudent to consider a new will which has clause declaring that the will incorporates the STEP provisions (second edition) to ensure all the approprate powers are given to trustees.

It would be prudent to consider appointing you as a joint trustee alongside Andrew and Sally to give you more control over the trust if a discretionary trust is desired due to potential debt issues you may have in the future. It may be sensible for your mother to give more detailed guidance as to her wishes for the trust monies in a separate letter of wishes. This is important for trustees of discretionary trusts so they know they are acting how your mother would have wished though letters of wishes are not binding.

Also if you were to predecease your mother the will provides that everything goes to Sally. I do not know whether you have or might have children in the future, but if you do this will disinherit your children in favour of Sally if you were to die before your mother. This may not be intended.

Generally if including a discretionary trust it is a good idea to have a will professionally drawn rather than attempt a DIY will because Trust defects and disputes can be costly to reslve through the courts. However that said the will just about does the job if the above points can be attended to.

Does the above answer all your questions or is there anything I can clarify or help you with any further?
Customer: replied 1 year ago.

Hi thanks for your answer. I want the will to absolutely bomb proof as regards ***** ***** possible future insolvency on my part. i.e. any legacy needs to be safe from attack.

In this respect, is your suggestion of me being a trustee of discretionary trust ok?

Can you tell me what terminology includes the STEP provisions - (is it just ".... include STEP provisions"?

Is it fine to have the trust become established only when it needs to be i.e. after death.

Alternatively, could the main bequest be to "xxxx charity" with me having lifetime interest. Could you give me a rough idea of how to phrase this, or tell me where I might find sample or template etc.

Finally, upon your suggestion of having will professionally drawn, could you do this?

Thanks for your time.

Expert:  Joshua replied 1 year ago.
Regarding your queries:

Your being a trustee does not make it possible for the trust assets to be claimed. It just means you have more control over trust property but you do not own it as a trustee so it cannot be claimed by creditors.

To include the STEP provisions within the will - this is normal industry practice ensuring that executors and trustees have all the necessary powers to adminsiter the trust and will, a clause needs to be added to the extent of: "The Standard Provisions and all of the Special Provisions of the Society of Trust and Estate Practitioners (2nd Edition) shall apply"

The will only comes into effect after death and so the trust is not created until your mothers passing. You cannot create a trust in a will before death occurs. It is possible to create a trust before death but this must be by trust deed not in a will.

Your mother could specify that you a life time interest but if the intention is to prevent claims from creditors, a protective trust is likely to be what you really want. This is similar to a life interest but it give the trustees power to appoint at capital to you at any time (allowing them to take account of circumstances). The purpose of a protective trust is principally to provide for people who either have potential insolvency issues or who are very bad with money and therefore a testator may want to ensure they benefit but not to simply give them a gift which might be claimed by creditors or squandered.

Finally regarding professionally preparing a will, whilst I would be delighted to, unfortunately this goes beyond the limits of the terms of service for this site. I am not able to form a formal solicitor client relationship due to a variety of reasons, principally that of regulatory and insurance and so this site is limited to providing information. Howeverif you are keen to avoid expensive solicitor fees Will Writers can offer a cheaper service. Protective trusts will be on the limit of typical expertise of a will writer in my view (though they may tell you otherwise and they may be correct) but you can contact some and ask them the question.

Ideally you would contact a STEP qualified solicitor who can fully advise your mother. Based on what you say I believe if it is your mothers intention to gift you her estate but just to protect against possible claims from creditors you can have your cake and eat it using a protective trust and spending £500 on a solicitor to professionally prepare her will would likely be worthwhile in the long term however if you can take account of my above suggestions, you have a working will which will afford a considerable amount of what you want but a protective trust will gurantee your protection against most potential disputes which can arise under discretionary trusts.

Has the above answered your questions satisfactorily?
Customer: replied 1 year ago.

Thanks for comprehensive answer. Can you tell me if their is a fault with JustAnswer systems?

I asked my original question to you (as you assisted me once before) then "Aston Lawyer" answered, but it got to you eventually!

Your personal service good, but system confusing for users.....

Regards, Steve

Expert:  Joshua replied 1 year ago.
I think what happened here is that I was in meetings this morning. When you request someone in particular it means that the question is locked to them (me for) a period of time but if I am not around it eventually gets released to others so as not to keep you waiting too long. Here my colleague picked it up. A way to avoid this is to mention me by name in the first line and then colleagues will typically avoid answering.

Thank you for your feedback. I believe the site is about to launch imminently a new radically overhauled interface which has been designed to address many bugs and general feedback from customers. This has been designed to hugely improve customer and for that matter our experience so fingers crossed it will do just that. I hope you will use the service again in the future and will find it easier to use next time.

I am glad the above has of assistance though.
Customer: replied 1 year ago.

Sorry, just one more question. If doing new DIY will, amended with your suggestions, can I simply replace "discretionary trust" with "protective trust"


Expert:  Joshua replied 1 year ago.
No sorry its not quite that easy. Trusts are not easy to draft because they take several years of experience to draft properly.

Although I cannot draft a will for the above reasons, if you are keen to attempt a DIY effort I can prepare abasic protective trust you can adapt for say £75 but I personally would not recommend it as there are many pitfalls and the chances of it being correct or not high. It took me 2-3 years after qualifying to be able to prepare problem free trusts consistently.

My view if you are considering a DIY effort would be to stick to the existing form of discretionary trust and just take into account the above points. A protective trust is in my view better than what you have but really should be prepared professionally or it could fail and be worse than what you have.

Is there anything above I can clarify for you?
Customer: replied 1 year ago.

Thank you for all your help. If you could suggest a law firm that would draft a suitable protective trust will by email, for us to sign & witness ourselves, that would be all.


Expert:  Joshua replied 1 year ago.

Certainly. Which large town or city do you live near? Walthomstow?

Customer: replied 1 year ago.


Expert:  Joshua replied 1 year ago.
Thanks. You could try either:

***** *****
Holden & Co LLP
Liberty Buildings, 32-33 Robertson Street
East Sussex
TN34 1HT
01424 722422


Aileen Francis
Percy Walker & Co
Robertson Chambers, The Memorial
East Sussex
TN34 1JB
01424 721234

I hope the above has been helpful.
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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