In a recent High Court case, Rakesh Gupta claimed that his late mother’s Will, which favoured his younger brother, Naresh, was invalid due to lack of knowledge and approval. The Court found in favour of Naresh on the basis that, when considering the facts of the case, no suspicious activity had surrounded the creation or approval of the Will.
Their parents had handed over their successful business Rakesh in the 1990s, having purchased a house in which they lived with Naresh and his young family.
Their parents had ‘mirror’ Wills drawn up in 1998. Both Rakesh and Naresh were named as executors but the terms of the Wills favoured Naresh – the family home and a significant cash sum was left to him. Aside from small legacies left to their grandchildren, the rest of Mr and Mrs Gupta’s estate was to be equally divided between their two sons.
Having a Will means it will be simpler for your chosen executors to administer your estate after your death and in line with your specific wishes.
If you die without a will, your estate will be distributed in line with the Rules of Intestacy, rather than how you may have wished to have it distributed.
A well-drafted Will by a Wills solicitor can reduce the amount of Inheritance Tax (IHT) your estate may incur, for example by taking advantage of the nil-rate band transfer, charitable, agricultural or business property relief. Some professions are exempt from paying IHT, such as firefighters, members of the Armed Forces and Police officers; a specialist solicitor will be able to advise you on this and draft your Will accordingly.
If you have children and need to appoint a guardian, or if you want to leave specific items or pecuniary gifts to particular people, then a Will is especially important to make clear your wishes.
Many people will only write one Will in their entire lifetime. They may write it several decades before their passing, but still find, as they reach their final years, that it continues to reflect their wishes.
However, the reality for most of us is that the circumstances and details of our lives, as well as those of the people around us, change over time: we get married, get divorced, get remarried, friends and family become estranged, financial situations change, health alters our constitution and outlook, and our visions for our legacies evolve.
This is why it is so important to ensure we amend our Wills as often as we need to. Whether it is because we wish to change executor, change beneficiaries, set up trusts, provide for charitable legacies, support the future needs of a new partner, or for some other reason; by revisiting a Will and changing its contents we can, with just a few sentences and a familiar flourish of signature, help provide clarity for the future while also reducing the possibility for contentious Wills and inheritance disputes among our loved ones.
Only 180 years after the Wills Act was introduced, there is a suggestion that the law around making Wills may need updating to reflect “changes in society, technology and medical understanding”. When one considers that Queen Victoria had just succeeded to the throne and that neither the car nor the computer had been invented, the statute has lasted rather well. However, recent developments in medicine and technology present new challenges not envisioned in Victorian times. As a member of ACTAPS, I had the pleasure of being invited to a Law Commission meeting on their proposals for bringing the law of Wills into the twenty-first century.
There had been quite a lot of sensationalist reporting on their proposals which they were keen to correct.
If you already have a Will but have not updated it following a change in circumstances, then the outcome of Martin v Williams may prompt you into action. It also threw light on the rights of cohabitees to make claims for financial provision from the estate of a deceased partner.
Under the provisions of the Inheritance Act 1975, cohabitees must prove that they were living as husband and wife (or as civil partners for same-sex couples) for a least two years prior to their death to make a claim. However, claims made by cohabitees are restricted to covering maintenance, i.e. living costs.
In the aforementioned case, Mr Martin made a Will 28 years prior to his death in 2014. In it, he left his residuary estate to his wife from whom he later separated. He then lived with his new partner, Mrs Williams from 2009 and they owned equal shares of their property as tenants in common. Mrs Williams was also the joint owner of another property with her sister, which they had inherited from their father and was occupied by her sister.