Will power for 2019
New Year’s resolutions often involve sorting out personal finances and this may include effective will and estate planning. However, this should not mean making a will and storing it at the back of a drawer for 20 years.
Every year, inheritance claims and disputes occur in England & Wales. Some of the most common reasons for these include:
- Outdated wills
- Wills not signed or witnessed correctly
- Someone dying without making a will – (known as dying ‘intestate’)
- Poorly drafted wills or wills containing errors
- The person who made a will not have the mental capacity required to do so – (known as ‘testamentary capacity’)
- Wills made a result of coercion – (known as ‘undue influence’)
- Wills being made where the person making the will does not consent to the contents of the will or understand its effect
- Wills which fail to make ‘reasonable financial provision’ for certain family members or financial dependants
- Wills being forged or destroyed
It is important to remember that a will must deal with how a lifetime’s worth of assets should be distributed. It is therefore worthwhile investing in will making and also considering estate planning as an evolving process.
A good will should reflect any changes in your wishes or personal circumstances e.g. if you marry, start a business or have children. It, therefore, needs to be reviewed (and if necessary updated) over time.
Should inheritance claims put people off making a will?
Although inheritance disputes can occur this does not mean that they will happen in every case or that someone should not make a will.
In fact, dying intestate can also cause problems (see the ‘Points to Note’ below for further details) and careful estate planning and making a will can have many benefits. For example, it might make your estate more tax effective and it can also deal with matters such as:
- Funeral wishes
- Appointing a guardian for any minor children
- Stating who should benefit from your estate
- Setting up a trust
- Explaining why you have excluded someone from your will or left certain legacies
For example, by considering how you make your will and also discussing any potential claims against your estate with your solicitor at the time when the will is made (and updated).
Points to note
Some important points to consider include:
- No will – no say
If you don’t make a will, you will have no say in how your estate is dealt with after your death. Instead, the Intestacy Rules will apply and this can mean that someone whom you may have not intended (or wanted) to benefit from your estate will inherit it. Intestacy can also cause family disputes or prompt claims being made against an estate.
- Cohabiting partners
The Intestacy Rules make no provision for unmarried cohabiting partners (or those who are not in a civil partnership). If one cohabiting partner dies without making a will, their surviving partner will not automatically receive anything from an estate unless they were either married or had a civil partnership. This can cause particular issues with jointly owned property and it can mean that the surviving partner will have to bring a claim against the estate.
- Wills are never ‘watertight’
Some people wrongly believe that their will cannot be varied or challenged after their death. There is never a guarantee that the wishes contained in a will are always carried out. However, there are ways to try and minimise the risk of claims being made. When you make your will, it is important to mention to your solicitor anyone who may have a potential claim against your estate and also any health or other issues which might cause someone to query your will in the future.
- Wills have to be updated
A will usually reflects your circumstances when it is made. As your personal circumstances change, you should review your will to see whether or not it still reflects your circumstances and wishes. Charities named in an outdated will may also cease to exist or change their name and gifts to them might fail as a result.
- What service are you getting?
The will writing industry is currently unregulated in England & Wales and the quality and effectiveness of will services available varies greatly. You usually get the service that you pay for and, although this does not mean that only expensive wills are effective, you should consider:
- the quality of the service being provided;
- the will drafter’s complaints procedure and client care record (and whether or not they are insured);
- what recourse your estate will have if things go wrong?; and
- whether or not the costs involved are reasonable and transparent?
So, if you are thinking about ‘spring cleaning’ your finances in 2019, consider what will happen to your estate after your death. Will your wishes be carried out or do you need to make or update a will? Our Disputed Wills Team provides specialist advice about claims involving wills and estates.