Mother and child

No matter how many times I come across it, I still find it amazing, indeed shocking that two out of three adults do not have a valid Will in place. When you put it down to figures, did you know, that means that only 33% have a will? I often why the other 67% haven’t got one!

I’ve started to ponder the why more recently, and I’ve come up with these reasons:

  • Is it because people don’t care? That may be the case for some but I think that is more likely to be around one in a hundred people who doesn’t care about having a will, let’s say that’s a fact – so what about the other 66 people?
  • Is it because they think that they are immortal? Some people may find it difficult to believe that they are not going to live forever and so don’t even contemplate writing a Will!
  • Perhaps those that don’t think that they are too young! Funnily enough, I was recently having a conversation with a 72-year-old who thought that she was too young to be thinking of writing her Will!  Are you surprised?  I was! She was definitely not too young, but it’s not just about age. I have recently been involved with a 48-year-old who died suddenly without a Will. He was unmarried and his elderly parents had to deal with the complications of managing his financial affairs at the same time as dealing with their terrible loss. Another client of mine, aged 37 died a couple of years ago – fortunately she had a Will in place, because I insisted that she and her husband did them immediately I took them on as clients.  Thank goodness they listened.
  • Another reason why people might not put a Will in place could be cost and I can appreciate that there are always many demands on our money. However, if a Will costs around £150 it’s a tremendous investment when compared with the four-figure bill that your family may have to pay out if there is no Will in place.
  • Is it that the thought of visiting a legal practice is a daunting prospect, especially if it means taking time off work? That I can understand and is why we have developed our online system where we can take instructions remotely at a time of convenience.
  • Is it because it’s difficult to get witnesses together to sign?  The Wills Act 1837 stipulates that witnesses all have to be in the same room at the time of signature.  Well, this was almost impossible in the first few months of Covid-19. However legislation put forward in August now allows Wills to be witnessed via video conferencing. This legislation was backdated to 31st January 2020 to allow for any Will that had already been witnessed using video. It has been extended for two years to 31st January 2022. So that means another excuse has been removed.

What is Required when Writing a Will?

Assuming that you are over 18 and you have full mental capacity the first thing that you need to do is appoint Executors and Trustees. Not everyone knows what that means. Simply put, the Executors execute your wishes in your Will and the Trustees are trusted with looking after your assets until they are distributed to your beneficiaries (your chosen family, friends, businesses, charities etc.). In practice your Executors and Trustees are usually the same people. Up to four people can act as Executors and I always recommend that you have more than one. Make sure that your chosen Executors can work together and if not while it may not be the first option, we have a relationship with a professional Executor and Trustee that we can recommend so there’s always an option!

Children

If you have children it is vital that you write a Will because a Will is virtually the only way in which you can appoint legal guardians for your children. Can you imagine the trauma that your children would suffer if they were temporarily looked after by foster parents while the grandparents were assessed as being capable and able? Worse still, if it is your intention that your friends be your children’s guardians they would have an uphill battle proving their suitability. Even worse have you asked them first? Perhaps they don’t even know that it is your wish for them to be guardians for you children should the unthinkable happen – after all it is a huge responsibility.  Do ask first!

Who Are Your Beneficiaries?

Your beneficiaries come next and at this point you really need someone with expertise and experience. If you exclude a family member have you prepared a written statement, separate from your Will stating why they have been excluded? Without it, a court may decide to overturn your exclusion. If you leave money to charities beware of leaving a percentage – much better to leave a sum of money because charities are known to be ruthless and will want your trustees to account for every last penny!

What Are Your Assets?

Are you sure which of your assets you can leave via your Will and which you cannot? If you own a property as a joint tenancy it will pass to the other joint tenants, regardless of what you say in the Will. If you want to leave your share of your property via your Will you should arrange your property ownership as tenancy in common.

Distribution of your assets can require professional expertise, which is why our clients come to us. It may save your beneficiaries thousands of pounds if you have done this correctly. However this should be an excuse to procrastinate and a Will where you have appointed executors and guardians is much better than no Will at all.

Organ Donation

Apologies that I’m about to use the word ‘amusing’ in connection with Wills but it does raise a smile when clients want to stipulate organ donation in their Will. I explain that usually the funeral has already taken place by the time that the Will is retrieved from storage so when they get to the organ donation clause it is already too late.

The Pitfalls of Will Writing

There are many pitfalls in writing a Will and I could probably write a book on the subject. I once came across a client who had prepared her Will, leaving everything to her two sons and her two sons had witnessed it. Going back to the 1837 Wills Act, the people that cannot inherit anything from the Will are the witnesses so in witnessing, the sons had disinherited themselves. 

In another case a couple proudly showed me their Wills that they had written before they had got married. They were unaware that marriage revokes a Will. They could have covered this by including an “in contemplation of marriage” clause but they hadn’t. They were quite upset when I had to inform them that their Wills were no longer valid and they had to start again.

Keeping Your Will Safe

It might seem a simple thing but secure storage of your Will is vital. We provide all of our clients with a professional storage facility via an independent legal storage company and we inform all of the Executors of the location and how to obtain the Will at the time of need. 

A few years ago I was in discussion with beneficiaries who had not been able to locate a Will and had processed the estate with one following the laws of intestacy. The Will appeared almost 5 years later and it ended up in court because one of the beneficiaries had not been provided with their inheritance.

In a tragic case this year a woman was swept away in the February floods and her original Will has not been found. She had come to see me about ten years ago and supplied me with a copy of her Will which we kept on file. I was able to supply the family with a copy and they have appointed legal representatives and are currently going through the legal process to try to process her estate on the basis of a copy that was held in our file. 

Here’s another! I can never understand why clients prepare a Will and then store it under the bed.  This reminds me of another case where during a blazing row one client grabbed his Will from under his bed and ripped it up, but that is a story for another day – as I said I could write a book.

So if you haven’t got a Will in place, I urge you to put it on your New Year’s resolutions list.  No matter your age, 18, 38, 58 or 88 – you need a Will in place!

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