LEGAL CORNER By shirley Tull, Partner
“We can’t take it with us …” there is always something
more interesting to do than to think about writing or reviewing a Will but
my work with clients over the years has shown me that this is a vitally important subject for us all to consider. I have seen the pain, upset and unnecessary expense of sorting out the estate of someone who has died and left behind problems relating to their family or their property and money which could have been resolved by having a properly written legally valid Will to guide and direct those left behind.
The absence of a Will clients have often said to me that they don’t need to bother with writing a Will because their husband or wife will get it all anyway. Don’t rely on this idea. If you don’t write a valid Will then effectively the government writes one for you by imposing rules - called the intestacy rules - which say who amongst your husband/wife/civil partner, children and possibly other blood relatives will inherit your property and money. the order of entitlement is strict and may be
ungenerous to a surviving spouse who will receive, for example where there are children, only £250,000 worth of assets in the name of the first to die. unmarried partners or charities or friends who were important to the person who has died will get nothing and the situation can be very complicated where there is no surviving spouse or children or close blood relatives.
The homemade Will If you have a Will, look at it again if it is homemade.
much uncertainty can follow ambiguous wording and mistakes can be very expensive to sort out. take for example a homemade will of a client of mine
who died recently. When she wrote it I am sure that she believed that she was changing the Will, which my firm holds for her in the strong room, in which everything is left to a mainstream charity. the home made Will is signed, dated and witnessed by two witnesses and so it complies with the Wills Act. It begins ‘this is my last Will and testament’ – so far so good – but then it goes on to say, ‘I evoke the previous Will that I made’. I am sure the intention was to say revoke but missing off one letter has changed the meaning altogether more in line with bringing the previous Will back rather than cancelling it. these words are followed by a gift of ‘my belongings’.
How is this to be read? the deceased probably meant the words to cover everything, but belongings could just as easily mean clothes furniture and personal effects only. there is now a potential claim to the estate by the charity and by the friend depending on the validity of the home made Will. Every word counts in a Will. I have seen gifts
to the National Rust and the National society for the Protection of cruelty to children. I read a case recently in which the deceased left the contents of his bureau to his nephew. At the time of his death the bureau contained not only his ink stand and pens etc but the deeds of the house and his share certificates. this
case went all the way to the court of Appeal to establish what that gift meant. check your Wills to make sure that all is well.
Is your Will up to date? Well you may say, I have a Will written by a solicitor
and signed correctly - but is it up to date? When you write a Will you are usually considering circumstances as they are at the time but of course a Will normally and hopefully takes effect some time much later when your circumstances may have changed. It is a challenge to write a Will when you cannot be
sure what you will own and what the circumstances will be at the time of your death. I saw a client recently whose father had written a Will some 12 years ago giving his house to his daughter and all his other savings and investments to his son. At the time of the Will the gifts were more or less equal. However, during the intervening period until his death the father had used up most of his savings in care fees so that at the time of his death there was very little cash remaining. meanwhile the property gifted to the daughter had shot up in value with the result that she inherited more than her father had expected but his son substantially less. try to make your Will stand the test of time to avoid
unfairness and upset. Divide your estate in percentages and shares and as far as possible don’t name properties or investments to pass by the Will. Here are some of the circumstances in which your Will should be reviewed: 1. You may be in a second marriage. Don’t forget that
a will is revoked by marriage so you may very well have no Will at all. If you have a Will, is it fair to children from both families as well as to each other? 2. If you have children who are vulnerable in some way
– a rocky marriage or financial difficulty for example - have you protected their inheritance in your Will? 3. Did your parents have to use up all their money to
pay care fees? Do you want to try to protect your estates from that? 4. Have your financial circumstances changed? Are you
richer or poorer and is this reflected in the gifts in your Wills? 5. Have you made lifetime gifts which need balancing up with the persons entitled when you die?
Making a valid will and keeping it up to date allows you to: 1. Live longer according to statistics collected from the
Probate registry! this shows that the average age of a person dying leaving a Will is consistently higher than the average age of a person dying without a Will. best of all, the average age of a person dying leaving a Will with a gift to charity is the highest of all. 2. Leave your property and money exactly as you feel is right. 3. make gifts to people and charities dear to your heart. 4. Provide for and protect your loved ones. 5. Protect your assets and to appoint trusted persons to act as your executors and trustees.
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