When is a Will a safe Will?29-11-2017
Answer: when you leave absolutely nothing to chance.
And that might be just a little bit more complicated than you imagine.
For years, lawyers like us have been campaigning for people to make Wills to ensure their wishes are known.
We’d see too many families left in turmoil by well-intentioned last requests beautifully handwritten on posh paper, that actually meant nothing whatsoever in practice.
“It’s vital you have your Will professionally produced with the advice of a solicitor or it won’t stand up in court,” we used to lament.
Well, while that’s still true, we’ve had to change our battle cry. For it is now the way of the world that even an officially drafted Will by a solicitor may not be enough to ensure your worldly goods will go where you want them to go, when your time comes.
So, what’s changed?
The biggest thing is simply the way of the world. Wills used to be much simpler in the days of the 2.4-children family, when spouses wed and usually stayed together for life and the path of inheritance was clear cut.
The breakdown of the traditional family unit, and rise of second families, however, makes the whole question of inheritance more complex than ever. Many people choose not to wed at all now, and they think nothing of partnering up several times throughout their lives, creating a complex web of offspring, all with different relationships to the parents at the centre, and therefore varying rights to what is left behind.
This state of flux means that the courts are often called upon to intervene in people’s lives in ways that they haven’t done before, and people’s personal wishes for the assets they have built up over a lifetime, can end up being overruled.
In fact, these relationships can become so complex and fraught, some people decide to opt out of leaving anything to their offspring, and instead plump for making their favourite animal or cancer charity that bit more wealthy.
High-profile test case
As we saw a few months ago, in the high profile legal wrangle that resulted from Melita Jackson leaving her estranged daughter Healther Illott out of her Will, and donating her half-a-million-pound estate instead to animal charities including The Blue Cross and RSPB.
This case rumbled on for three years as the daughter contested her mother’s choice right up to the Supreme Court, who finally decided to award her £50,000 of the assets, based on an argument that, under the Inheritance (Provision for Family and Dependents) Act 1975, adult children have the right to expect ‘reasonable financial provision for maintenance from their parents’.
The pair had been estranged for 26 years when the mother died, aged 70. She had disowned her daughter aged 17, after she left home to live with her boyfriend, who she went on to marry.
Now your view of this situation will largely depend on which side of the fence you sit on. You might consider the mother harsh for disowning her daughter in the first place, let alone leaving her nothing when she finally passed away. Or you might be worried by the fact that, despite exercising her personal right to donate her own money as she saw fit, her wishes were disregarded, and left wondering where you stand.
Leaving nothing to chance
We are seeing a significant rise in contested Wills – where family members are challenging the path of inheritance.
One of the most common reasons for contesting Wills, historically, has involved doubts about the mental capacity of the person who made the Will. This has led to a popular misconception that this is the only potential grey area.
However, we are now seeing other reasons creep in, such as ‘undue influence’. This is where one member of a family might claim that their father or mother has left everything to a sibling or other relative, friend or cause, because they were putting them under pressure to do so. And then there is the potential for claims under the Family (Provision for Family and Dependents) Act 1975, as per the Illott case, where someone argues that their family member had no right to leave their assets to a charity or another family member, because they had a responsibility to look after them.
We’ve thought long and hard about the reasons for this. Could it be simply that we’re living in an increasingly litigious society, where people think it’s worth trying to fight for their share? Have they been inspired by high profile cases like the Illott one? Or is it just a fact that today’s highly complex relationships mean arguments over who gets what are inevitable?
We think it’s probably the latter. Either way, though, it’s important to take extra precautions to make it absolutely clear what you want to happen to your money and any other property.
Traditionally, it was enough to make a Will on the advice of a solicitor, and have it officially witnessed and stored in a safe place. Doing all of these things remains important, but there are a few additional steps that we would also recommend, in certain circumstances
- Write a personal letter, in your own handwriting, explaining that you have all your faculties and your reasons for making the decision you are making
- Tell as many of your friends, and close family, as possible, the choice you are making and why, and ask them to provide testimonials for you to include with your Will
- If you are very concerned, go to see your doctor or other professional, and have them certify that you are of sound mind at the time of making your Will, and capable of withstanding any undue influence
- You can even record a video of yourself explaining what you are doing and why.
If you are in the process of making a Will and are worried that any of the above might affect you, get in touch with us for a no-obligation initial chat via email@example.com or (01482) 225566.