A man who successfully challenged his mother's final will is likely to recover the lion's share of...
A Will is a legal document that sets out how you want your estate to be distributed when you die. If you don’t leave a Will, it could result in your loved ones not benefitting from your estate in the way you might have wished, as the rules of intestacy will apply.
If you do make a Will, you must be sure that it is prepared and executed properly. DIY Wills often prove to be problematic. For this reason, the safest course of action is to seek legal advice to make sure that your Will is legally binding and is the right type of Will for your personal circumstances.
When a big change happens in your life it is likely that it will either affect your Will directly (it may be revoked) or it will affect the way you wish for your estate to be distributed. Therefore, it is important to keep your Will updated so that your most current wishes can be fulfilled, and your estate can be dealt with in the most organised and tax-efficient way on your death.
If any of the below statements apply to you or could apply to you in the near future, then you should prioritise writing or updating your Will:
- You are anticipating marriage or have recently married;
- You have recently divorced;
- You are separated from your spouse;
- You are in a civil partnership;
- You have children;
- You are cohabitating;
- You have formed a new relationship and have children from a previous relationship;
- Your estate is liable for inheritance tax;
- You wish to give your estate or part of it to a vulnerable person or disabled person;
- You own property or;
- You wish to exclude a family member
10 important things you need to know before you write a Will
When changes happen in your life, they will most likely affect your Will so before you write one, you should read the 10 important things you need to know about Wills below.
1: MENTAL CAPACITY
In order to make a Will, an individual must have sufficient mental capacity to:
- Understand the function of a Will and its effects;
- Understand the extent of their estate which they are leaving in the Will;
- Be able to comprehend and appreciate the potential claims upon their estate, i.e. the family and dependants that would have an expectation of benefitting (even if they are to be excluded);
- Not be suffering from a mental disorder which adversely affect their sense of right and wrong or affections towards individuals or which alters the decisions they make about the terms of the Will.
If it is thought that capacity might be questionable it is common for a medical opinion to be sought before proceeding with the drafting and completion of a Will.
For individuals that no longer have capacity to make a Will or if their existing Will is no longer suitable due to a change in their circumstances, it is possible to apply to the Court of Protection for the court to create a statutory Will on behalf of the incapacitated person.
2: GETTING MARRIED
When you get married all previous Wills are revoked.
Unless you either make a Will “in contemplation of the marriage” or make a new Will to reflect your wishes immediately after you marry, the rules of intestacy will apply to your estate. This means that, unless you have children, your spouse will receive everything from your estate when you die. If you have Children, your spouse will benefit from the first £270,000 (From February 2020) and half of the remainder of your estate.
Couples who marry later in life should definitely consider writing a new Will especially if they have children from previous relationships and they want their assets to be preserved for their own children instead of their spouse.
3: GETTING DIVORCED
If you get Divorced, your existing Will remains valid so you should review your Will and make any changes to reflect your current wishes.
Your Decree Absolute automatically removes your former spouse from your Will, but all other named executors and beneficiaries remain the same. If you have a trust in place for your children where your spouse is an appointed trustee and you still wish for this to be the case after you are divorced, then you should update your Will to reflect this.
The above rules only apply to legally divorced couples, not to estranged couples. Estranged couples would still benefit from each other's estate in the event of death if a Will was not made or updated.
4: VALIDITY
Check that your Will has been prepared and signed correctly.
For a Will to be valid, it must be in writing, signed by the person making the Will, in the presence of two witnesses who also sign the Will. All three persons must be present at the same time when the Will is signed and the signatures on the Will must be handwritten.
Where a person is unable to sign a Will on their own behalf, it is possible for a Will to be signed by someone else at their direction.
5: COMMON LAW PARTNERS
A Common Law partner does not automatically benefit from your estate when you die.
A Common Law partner is not deemed to be the same as a spouse for intestacy purposes. The same applies for stepchildren in that they do not automatically benefit either. If you wish for your stepchildren or co-habiting partner to benefit from your estate, you should ensure they are included in your Will. In the case of the stepchildren, the definition of children can be extended to include stepchildren.
6: YOUR WILL CAN BE CHALLENGED
When you die, your Will may be challenged.
Whilst we have freedom of testamentary disposal to leave our estate to whomever we choose, there is a law that allows certain people to claim financial provision from an estate where they have been left with nothing or too little. If an individual is not a spouse and wishes to bring a claim, they will need to prove that they have a financial need or dependency. In some cases, estranged children are able to bring a claim even if their parent has specified that they do not want their children to benefit from their estate. Even a non-relative could claim on the basis that they were maintained by the deceased individual prior to their death.
7: YOUR WILL BECOMES A PUBLIC DOCUMENT WHEN YOU DIE
After death, Wills become public documents.
Once grant of probate has been issued, it is possible to view someone's Will by searching the probate records on the gov website (for a cost of £1.50). Although not legally binding, it might be an idea to write a letter to accompany your Will to include any private wishes alongside your Will as these would not be published.
8: HELPING A LOVED ONE TO DIE – THE ‘FORFEITURE’ RULE
An individual may not benefit from the estate of someone they have unlawfully killed.
This is known as the 'forfeiture' rule. If, for example, you were to go with your loved one to an assisted suicide clinic, you may not benefit from their estate. It is possible however to submit a request to the court asking for the forfeiture rule not to be followed.
9: THE 'COMMORIENTES' RULE
In the unusual event of both spouses dying simultaneously, it may not be known which spouse died first. In this circumstance, for inheritance purposes, the Commorientes Rule is applied and the eldest is assumed to have died first. When both spouses have children from different relationships, the children of the eldest spouse would benefit from the whole estate.
It is therefore usual to include a survivorship provision within a Will to avoid the Commorientes Rule in relation to solely owned assets. Jointly owned assets would however pass under survivorship rules to the youngest joint owner.
10: DONATING TO CHARITY REDUCES TAX BILL
Charitable legacies are entirely free from Inheritance Tax
If you donate to charity via your Will, your inheritance tax bill may shrink. For example, if you were to donate 10% or more of your estate to charity, the inheritance tax rate applied to your estate would reduce from 40% to 36%.
It’s easier than you might expect, and most people experience a sense of relief once it’s sorted.
If you are considering making a Will or making changes to your will, please consult contact Emma Harrison on 01827 317081 or email eharrison@pickerings-solicitors.com who will be able to advise you on the most appropriate way to make a change for your circumstances.
