Estate planning is an area of law that requires a lot of careful thought. There are many important matters to address when writing a Will, and a mistake could lead to a dispute arising at a later date. To help ensure your wishes are fully carried out and your estate is administered in the way you want after your death, here are six crucial things to consider when constructing your Will.
1 – Make sure you use an experienced Wills solicitor. Don’t be tempted by the cheap “DIY” Wills you see online or in bookshops – you could end up inadvertently disinheriting loved ones because of some ambiguous wording or causing unnecessary complications for your family after you’ve gone.
2 – Choose your Executors wisely. Often, parents will choose their adult children who have been estranged from each other or have had a turbulent relationship for many years. This is done in the hope that it will bring the siblings closer together as they deal with their parent’s estate. However, this is rarely the case and often causes a great many difficulties and additional expense and delays for the executors and beneficiaries. Make sure your chosen executors know what is expected of them and that they are willing to act as executor. It is better to choose two executors, rather than one, just in case anything incapacitates the sole executor.
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.