Lara’s comments were published in Tatler, 29 November 2023, and can be found here.
Writing a Will should be a priority, say leading lawyers
Research reveals that more than half of UK adults don’t have one. The experts discuss why you should
According to recent research by Canada Life, more than half of UK adults still do not have a Will. A survey of 2,000 people in March this year revealed that 57 per cent admitted they didn’t have one in place. As a percentage of the UK population, this would equate to more than 30mn people.
Jan Atkinson, Partner at Osbornes Law tells Tatler, ‘In my view it makes sense for everyone to think seriously about making a Will when they acquire assets or start work, marry or have children. It is not at all obvious who would receive a person’s estate under the intestacy rules, which dictate what happens to a person’s estate where there is no Will. These determine which relatives of the deceased would inherit and in what proportions. It is only by making a will that a person can be sure that their assets will pass to their chosen beneficiaries.’
Patricia Milner, Partner at Withersworldwide also emphasises how Wills ‘can in certain situations mitigate any Inheritance Tax which might be due’. She adds: ‘We often have discussions with parents/grandparents about young people inheriting significant wealth at an age when they might possibly be too young to deal with it responsibly. These conversations often result in clients drafting their Wills in a way that ensures that their children do not have access to significant amounts of capital until they, say, turn 25, or even 30 in some cases.’
It’s not just assets and wealth that’s at stake without a Will, Emma Harris, Partner at Payne Hicks Beach also talks of parental custody. ‘If you and your co-parent die whilst your child is a minor, then a Will is the best way to give Parental Responsibility to the person you think most appropriate. Parental responsibility is a legal term which entitles the holder to make decisions on behalf of the child and their welfare generally. Typical decisions taken by a person with Parental Responsibility include deciding where the child should live and agreeing to medical treatment etc.’
Harris adds: ‘Without such provision being made, there could be disagreements that result in Court applications by various family members and friends to ask a Judge to decide who should be awarded Parental Responsibility for your child. This is costly, time consuming and leaves your bereaved child in a state of uncertainty at an already very difficult time in their life.’
When it comes to the biggest misconceptions surrounding Wills, Lara Barton, Partner at Hunters Law tells Tatler, ‘Many people think they are unnecessary. In England and Wales, we have complete testamentary freedom (i.e. there is no legal requirement to provide for particular people), but without a Will, the law stipulates who gets what and when. Many people can’t face thinking about what will happen when they die, and fail to consider or deal with the difficulties, upset, and financial consequences they may leave their loved ones by not communicating their wishes and making a Will.’
Specifically, Atkinson points to a little-known statutory legacy. ‘One common misconception is that everything passes to a spouse on the first death. That may happen but it depends on the value of the estate in question and whether the deceased had children. A surviving spouse only inherits the first £322K (the statutory legacy) and half of the remainder of the net estate. The children take the rest in equal shares. So if an estate exceeds £322K net, the surviving spouse will not inherit everything and that can create unwelcome and unnecessary Inheritance Tax (IHT) charges.’
There’s also the issue of Wills made before a marriage, as Milner points out. ‘People are often surprised to discover that marriage automatically revokes their existing Will and so it is necessary to prepare a new will when you get married. It is possible to draft a special type of Will, known as a ‘Will in anticipation of marriage’, prior to the Big Day, which will ensure that the marriage will not revoke any existing Will.’
Of course, there can be a whole host of emotional reasons why people put off writing a Will too. ‘One of the strangest misconceptions I have encountered is that somehow writing a Will is a portentous event which will likely result in the writer’s imminent death,’ says Harris. ‘ I am pleased to report this is not my experience with my clients!’
In recent years, there’s been a greater interest in digital Wills but Barton advises caution. ‘On the one hand this should result in more people writing Wills and being able to update their Wills with greater ease, but on the other hand it opens the door to potential abuse and undue influence, especially to the vulnerable and elderly. We need to progress with the times, but with caution, to ensure suitable protective measures and safeguards are put in place. There will be a need to educate the public on the risks and how to navigate these.’
Atkinson also states: ‘Digital Wills are not legally binding documents. To be valid in England a Will still needs the person making it (the testator) to sign the Will in front of two witnesses who should also sign in front of the testator and each other.’
Harris tells us, ‘The Law Commission is currently consulting on the process of making a Will and this consultation runs to December 2023. Legislation in other jurisdictions such as many in the USA, Canada and Australia do allow either electronically executed or fully digital Wills and I can see the appeal to allow digitisation of the process. This seems particularly relevant when considering how to encourage the digital generation to write Wills.’
The experts all agree, however, seeking advice from specialist lawyers will ensure a bespoke approach to the legacy you want to leave.
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