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16th May 2012

Wills? Your Questions Answered

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Can anyone make a Will? No, but most people can. It just needs sufficient understanding of your assets and family obligations, plus maturity.

In England maturity means age 18, but in Scotland it isn’t just whisky that matures at 12 (yes, a twelve year old can make a Will!).

Why would I make a Will?

You made the money, so you should get to choose:

  • Who benefits
  • Who does the paperwork
  • Who arranges your funeral
  • In addition Wills can help plan against taxation or provide extra care for loved ones who are particularly vulnerable.

What if I don’t get round to it?

Effectively a Will has been written for you by the Government (the intestacy rules). This varies according to the size and type of assets and family left behind, so:

  • A separated wife can inherit all
  • Some wives won’t even get the house
  • Your brother may inherit even though your wife survives you
  • Your children may inherit a lot and immediately – or nothing, ever
  • It varies across each border
  • Your favourite Charity won’t benefit (unless that happens to be the Crown).

Are civil partners or unmarried partners treated like spouses?

Civil partners have the same protection as spouses. However, an unmarried partner or “common law wife” has no automatic protection. Some (not all) co-habitants can ask the courts to consider giving them a share of an intestate’s estate.

Who inherits if I make a Will?

That depends where you live! If your home is England, Wales or Northern Ireland you are free to leave assets to anyone. However, people whose expectations have been disappointed (your spouse/children or anyone financially dependant on you – including a mistress!) can ask the courts to consider rewriting your Will to make provision for them. In Scotland it’s the other way round: there is “forced heirship”, so certain people have legal rights over part of your estate: Up to two thirds of your “moveable” estate (including savings but not your house).

Can I say what I like in my Will?

Yes, but bear in mind that it becomes a publicly recorded document after your death! There have been amusing gifts: one man left a lemon to the Revenue, so they’d still have something to squeeze instead of him! Conversely, it can be an opportunity to include expressions of love and gratitude to friends and family.

Who deals with my estate after my death?

The “executor” named in your Will. Without a Will, or if the executor died, then an “administrator” is set out in the intestacy rules. As with who benefits, this may be someone you wouldn’t have chosen – like a separated spouse or ill parent.

Can anyone be an executor?

Usually the best person to take responsibility for an estate is whoever is going to get the benefit of inheriting it! Occasionally this is unsuitable due to age (or youth!), or because more than one person will inherit and they are inclined to disagree. Then you might ask a close friend, relative or professional.

Could an executor become liable for my debts? or liable for an innocent mistake?

Yes, an executor (or administrator) is liable to HMRC, to creditors and to the beneficiaries – which can include those of whom he is unaware or can’t find! For this reason it may seem unfair to ask someone who isn’t your main beneficiary to be your executor. However, most executors choose a solicitor to help them and one of the solicitor’s tasks is to protect the executor from nasty surprises later on.

If everything is in joint names with my wife then do I still need a Will?

Yes – because although men often do die first, it doesn’t always happen! It’s easier and safer to plan ahead than to assume there will be time and leave making your Will until after a bereavement.

If I leave “all to Mother” will my mother inherit?

In one soldier’s homemade will, this was (correctly) interpreted as meaning all to his wife, whom he always called “mother”. Sadly, his relatives ended up arguing in court. Words used in everyday speech such as property, estate, money and next of kin (or mother!), have different meanings when used in a legal document. This technical use of language avoids ambiguity when done professionally, but does mean DIY wishes may be wrongly interpreted.

DIY Wills (or worse: paying a Will-writer who doesn’t have training and isn’t regulated or insured) can be a time bomb. Unlike other DIY projects, mistakes won’t show up until you’re dead and it’s too late to remedy them. This is one reason why Wills should be prepared by an expert.

How do I find an expert?

Solicitors are compulsorily regulated and insured for their liability to get it right – there’s nothing like liability for focusing the mind! We all also have training. Unfortunately the level of training can vary even amongst solicitors. Look for one who has the TEP initials after their name (it means they are also a member of the Society of Trust and Estate Practitioners) and ask friends for recommendations.

Surely anyone who charges to make Wills is liable to pay for mistakes?

No. In one case the judge was forced to agree with the defendant Will-writing company that, because they weren’t solicitors, they had no duty of care and so weren’t liable to correct their mistake. Fortunately for the relatives, the company had advertised “exactly the same service as a solicitor” and the judge held them to that: a solicitor who made a mistake would have paid compensation and so the company had to do the same! Unsurprisingly, that advertising slogan was withdrawn.

Why are some Wills invalid without proper witnessing, whilst others don’t need a witness?

The aim is to prevent duress or forgery and to ensure you intended the document to distribute your assets after your death. In England, Wales and N.I. two witnesses are required. In Scotland it’s usually one: there you can even handwrite your Will without any witness at all. This may seem open to forgery, but two people (who can prove expertise in your handwriting) then need to swear after your death that it’s your handwriting and signature. What seems easier and less formal can actually be much more difficult and risky.

Can I change my mind and cross out a gift after I’ve signed my Will?

Changes need to be signed/witnessed properly. Altering an existing Will by writing on it is likely to fail or cause litigation. A mini-Will (Codicil), which often costs less, can be made (with the same signing and witnessing requirements) for replacing executors or adding/removing cash gifts. Sometimes though a new Will won’t cost any more and is clearer.

Can I leave money to children who aren’t even a twinkle yet?

Yes, it’s all a question of wording.

Will my children’s father be their Guardian if I die?

In a few instances (such as the unmarried father of a child born before 2003), a Will is needed for the father to have rights after the mother dies.

What happens if I marry after I make my Will?

In England, Wales and N.I. the Will is cancelled unless it refers to the marriage. In Scotland a Will isn’t cancelled by a subsequent marriage – but can be cancelled by the subsequent birth of a child.

What if I divorce and forget to remake my Will?

In England, Wales and N.I. the law cancels the gift to your ex-spouse (but doesn’t cancel the rest of your Will).

However, the Scottish must be kindly disposed towards their ex-spouses, because their Wills aren’t affected by a subsequent divorce. Is my holiday home in the sun covered by my Will? If it’s in the sun, probably not! Houses abroad are usually subject to forced heirship rules. You should always take specialist advice.

Does that mean there’s no tax on my holiday home?

On the contrary, a house abroad can cause UK tax to be due even if your spouse survives you and you try to leave everything to your spouse. This is because that country’s forced heirship may make your children part owners of the holiday home.

Carolyn Bagley is a private client partner with Hewitsons, ranked top tier in the Legal 500. She is also a TEP. This article was also featured recently in one of CGA Services Ltd publications.

This article is written as an outline guide only and any action should not be based solely on the information given here. Appropriate professional advice should always be taken in specific instances.

With thanks to our LawExchange colleagues, Lindsays of Edinburgh for checking the comments on Scottish law.