Wills & Living Trusts

The definition of Personal Chattels in the English Administration of Estates Act 1925, s55 (1) (x) is:

‘ Carriages, horses , stable furniture and effects(not used for business purposes), motor cars and accessories (not used for business purposes), garden effects, domestic animals, plate, plated articles, linen, china, glass, books, pictures, prints, furniture, jewellery, articles of household or personal use or ornament, musical and scientific instruments and apparatus wines, liquors and consumable stores, but does not include any Chattels used at death for business purposes nor money or securities for money.’

 This definition in the context of a Last Will and Testament can be taken to include:

• sound equipment, amplifiers, CD Players, surround sound equipment including speakers;
• Televisions, personal cameras, video cameras, tapes and CDs, DVDs;
• Family photos and mementoes;
• your own personal computer, software and files;
• tools for hobbies such as woodwork, car maintenance, fishing, needlework, diving equipment, sports equipment;
• boats, motorcycles, aeroplanes and associated spare parts;
• Bicycles and other non-motorised vehicles;
• Wheelchairs and shopping buggies for the disabled;
• Gardening equipment – lawnmowers, tools, greenhouse, mini-tractors and diggers,
• Cats and dogs, birds, rabbits, hamsters and other pets;
• Toys and children’s equipment such as prams, pushchairs, cots and highchairs;
• Kitchen ‘stuff’, including stores of tinned food and bottles and jars left in your cupboard, washing machine and dryer, dishwasher etc.

This definition is as good as any and can be used in any Will.
What is not included is cash, passbooks, share certificates, promissory notes (ie IOUs), anything that you use for business purposes, such as a company car, computer and software belonging to a company and office furniture.  

Even if the company is a small business of which you are the sole proprietor, the equipment and assets of the company, bought with company funds, will not be chattels but form part of your Residuary Estate or, if you have left your business to a particular person, the assets are part of the business and will be given to the new owner.

Often Chattels are not referred to in a Will as a separate item. It is, however, our firm belief that they should always have their own separate clause in your Will.

The definition above is included in the English Administration of Estates Act currently in use in England and Wales. Other countries will have their own versions based on the UK definition, some of them are listed below, but they are all more or less the same. However, we use the 1925 act to define what we mean by Chattels, so even if this is used in a Will for Hong Kong, say, or Singapore or Australia it is still just a definition. You may prefer to use the definition of your country’s legal system; it will make no difference to the validity of the Will.  

You may want to mention specific chattels in the Will, such as an engagement ring, or a particular picture. That is fine for a few special items, but please do not dispose of all your personal possessions in the Will as individual gifts. You may lose, sell or acquire chattels and your Will will then be out of date, or the Executors will spend time looking for things which are no longer in your possession. It is much better to deal with the majority of your chattels as a single item and leave one or two people to sort out the details of who gets what with the help and guidance of any notes you might leave. People can, and do, change their minds about who they want to have which item. It is expensive and tedious to keep changing your Will, but you can change your instructions whenever you like without affecting the Will. The temptation to change the actual Will and thereby deface it is avoided by writing a separate memorandum or notes of wishes.   

If your Chattels include items of great value, then extra care should be taken to make sure that the person you have appointed to distribute your chattels has a schedule available to prevent ‘underselling’ of any of these items . For jewellery and original artwork (pictures, sculptures and the like) the proper value of each piece should be recorded; it is also a good idea to take a photograph of each item and give it a number for reference if it is very valuable, or of course if it is simply of sentimental value.

Antique furniture may be mistaken for ‘old’ furniture and its true value not recognised by someone who does not know about such things. If you have insurance for your more valuable items then the insurance valuation will probably be sufficient.

It is worth mentioning here, perhaps, that the probate office will include Chattels in the valuation of an estate, so don’t think that they are not included if you give them away separately in the Will.
   
You cannot, either, give anything away and continue to enjoy the use of it with the intention of excluding it for valuation, For example, you cannot ‘give’ a valuable picture to your son or daughter and then ask them to ‘lend’ it back to you. This situation is called an ‘interest in possession’ and the asset will be included in the calculations for tax if you are still enjoying the use of it, even though the change of ownership may be legally recorded.

Why should I not leave my chattels as part of my residuary estate?

On several occasions I have been told of incidents where, because no separate provision was made in the Will, the executors were left to deal with a family’s personal possessions, with heartbreaking results.

One family whose last surviving parent had just died called the solicitor (who had drafted the Will and appointed himself the executor ‘to save a lot of trouble for the family’) called to ask if they could have the keys and go to the house to clear up and remove the personal items belonging to their parents. The reply came back that the house would be cleared by a firm of house clearers, at the expense of the estate, and the family furniture and other chattels would be up for sale to the highest bidder. The adult children could go to the auction and bid for anything they wanted. He gave them the time and day of the auction. If this were not a true story you would think that nobody could be so heartless, unfortunately the solicitor was within his rights as the appointed Trustee and there was absolutely nothing the children could do about it.

Another young lady called me in what can only be described as a state. The story was this:

Her father had worked for a bank in the Far East. He made a Will in which, even though he was married, the bank were made the sole executors and trustees. A few days after his death, while his wife and family were still very shocked as this was an unexpected death of a man who was still working, some of his former colleagues arrived from the bank at the family home, wanting an inventory of his personal possessions, including his wine collection. Again, because the bank was appointed Executors and Trustees of the Will, this man’s wife and family were not legally entitled to anything that belonged to him. Under the terms of the Will everything he owned was vested in the Trustees. His wife was unable to do anything, and, incidentally, even though she was perfectly capable of arranging her own affairs, for the rest of her life her money was ’managed’ by the bank. A simple clause giving his Chattels to his wife, or failing her,  his children, would have saved them all a great deal of aggravation and upset at a time when they least needed it. Why he was persuaded to deny his wife access to his money we do not know, this was a united family with no problems and his wife was the mother of his children

Another of my clients had to sell her grandmothers valuable furniture left to her in the Will because there was no provision made for removal and storage. She was a student at the time and could not afford to move or store the items. A simple clause, such as the one we include in every Will we write, would have made it possible for her grandmother’s intentions to be carried out in full.  
 
I am not saying this is a frequent occurrence, but once is too often. The people concerned were very upset by these incidents and said they would never trust a solicitor again, which is a pity because we all need one from time to time.

Even if you appoint members of your family as Executors, they may feel that they cannot handle the legal work (a common situation). They can legally relinquish their position and hand the responsibility to a probate professional, such as a solicitor or a bank. If the chattels are part of the residue of the estate and the solicitor is in charge then the chattels will be handled by him in whatever way he chooses. A bank is the last choice; bank probate departments will be even less concerned. If you are lucky and have a decent and considerate solicitor everything will probably be fine, but there is a risk that your estate might be handled by a bristlingly efficient but unsympathetic and thoughtless person who works by the rule book. Put in the Will as a separate item your family will have legal rights to your chattels even if your appointed executors do not wish to have anything to do with the administration of your estate.

Unless you are dealing with a good company with plenty of experience in taking instructions, it is unlikely that you will be asked the question who do you want to distribute your chattels. It is up to you to raise it as a subject with whoever takes your instructions and insist on them being a separate clause in the Will. The correct clause is available in our Special Clauses package; you can then give the wording to your Will draftsman to use. Don’t allow yourself to be put off, you are giving the instructions!

If you enjoy life as an expat, then the chances are that you have a domestic helper. He or she will probably be the best person to ‘recycle’ items such as food in your cupboards, furniture of no particular value, unwanted clothes etc.