Where There’s no Will There’s a War: The Importance of Writing a Will
Everyone knows a story of a disgruntled child who hasn’t received quite what they were expecting after their parent’s death. Family tensions at such emotional times can often spill out into longstanding disputes, which the deceased would have been horrified (in most cases) to know he or she had caused. Our role as private client lawyers is to look to the future and anticipate possible problems, and the most straightforward way of doing that is simply to write a Will.
A Will is a tool that allows you to specify what should happen to your money, possessions and property (your ‘estate’) after you die. Without one, the law (known as ‘the intestacy rules’) decides how your estate is passed on, which may or may not be in accordance with your wishes. So if you want to ensure that your estate goes to the people and/or the causes that you care about, then the only certain way to do so is by making a Will.
This is particularly crucial where, if you are unmarried, you wish to provide for a partner whom you live with, as the intestacy rules do not currently recognise co-habitees, no matter how long you may have been in a relationship together. Unmarried partners stand to inherit nothing under the intestacy rules, which direct that the estate passes to the surviving family (i.e. children, parents or siblings).
Even if you are married or in a civil partnership, if you have children, the intestacy rules provide that your spouse or civil partner will inherit only part of your estate (personal chattels, a legacy of £250,000, and half the remainder of your estate, with the other half passing to your children on statutory trusts). This can leave the surviving spouse or civil partner in a difficult financial position.
Spouses, civil partners, close relatives and dependants may be able to make a claim through the courts for reasonable financial provision from the estate, but this can be a distressing and expensive process, and is one that can be easily avoided by making a Will.
Leaving a Will can also help to avoid disputes amongst family members by removing any doubt as to your wishes regarding the distribution of the estate, and by pre-empting potential challenges. This can be particularly relevant where there is a second marriage and children from a previous relationship. In this scenario, the use of a trust within a Will can be invaluable by, for example, giving a second spouse a life interest in the estate (i.e. a right to the income during their lifetime, which includes the right to occupy the family home), while protecting the capital for the children of the first marriage.
Similarly, where someone has children and stepchildren but wishes to leave the bulk of their estate to their children (rather than their stepchildren), a carefully drafted Will can help to reduce the chances of a successful claim by a stepchild. For example, the inclusion of a forfeiture clause in a Will (where a small legacy is left to someone provided that they do not bring a claim against the estate), can help to discourage stepchildren from making a claim. Alternatively, the use of a discretionary trust in a Will can allow trustees to negotiate a solution with the stepchildren and settle any claim before it is brought, thereby avoiding the upset and cost resulting from a court case.
Looking after loved ones and providing for complex family arrangements are not the only reasons to make a Will. A carefully planned Will can reduce the inheritance tax payable on death by making effective use of the inheritance tax nil rate band, residence nil rate band, and assets that benefit from inheritance tax reliefs (e.g. certain business and agricultural interests), where applicable, as well as leaving tax free legacies to charity.
Making a Will also allows you to choose who you would like to appoint as your executors (and trustees, if relevant), to deal with your estate in the event of your death, as well as guardians for your minor children. These are important roles and the choice should be exercised with care.
No one likes thinking about their own mortality, but if you want to be sure that your wishes will be met after your death, then a properly drawn up Will is vital.
Will writing is not a regulated activity in England and Wales. However, the majority of the private client department at Hunters are members of the Society of Trust and Estate Practitioners (STEP), and as such, we are required to adhere to the STEP Code for Will Preparation, which sets a standard of transparency, integrity and competency.
Molly Wills
Associate, Hunters Solicitors
