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Sheriff underlines benefit of clear will instructions

4 January 2011

Solicitors instructed to prepare a will ought to make full and clear notes of the instructions given, perhaps canvass alternative destinations in the event of subsequent changes in circumstances, and ought to give serious consideration to retaining all such files for future reference, a Glasgow sheriff has observed.

In a note related to the appointment of guardians to an incapable adult, Sheriff John Baird had to consider a provision in the adult's will, made in 2003 when she still had capacity, that her house should be left to a named beneficiary, given that the house would have to be sold to pay for care home costs.

Sheriff Baird first of all insisted on the prospective beneficiary being given proper notice of the effect of the proposed sale on the bequest and an opportunity to make representations. Solicitors suggested that as the house represented about 70% of the value of the adult's estate, the court should direct that a codicil be executed giving the beneficiary 70% of the estate remaining at death instead. The sheriff doubted that the court had such a power under the Adults with Incapacity Act, in the absence of an application by a party to the action, but the question was supersded in any event when the file relating to the will was retrieved and it was discovered that there was a clear note to the effect that the testator wanted the bequest to take effect only if she still owned the house, and there was to be no money provision as a substitute.

Hence the sheriff's observations quoted in the first paragraph above.

Click here to view the sheriff's note.

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