Reasons why you should have a Will or update it if you do
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Without meaning to sound trite for highlighting the importance of having a Will, instead, we are sharing a couple of recent real life client stories to illustrate the point:
- Jerry approached me to renew his Will he had made in 2003. During our meeting, he casually mentioned that his partner and him had a civil partnership last year. I had to gently point out to Jerry that his Will was actually invalid and that it left him with no Will in place. This is based on an old bit of obscure law that marriage/civil partnership automatically revokes a perfectly valid Will already made! Needless to say, Jerry was shocked and sensibly proceeded swiftly with me to have a Will in place.
Not all is lost however, if you already have a Will and you haven’t tied the knot yet, there is a way of saving your existing Will.
Disability or mental capacity issues
- Earlier this year, I was contacted by a couple in Canada to discuss probate of their aunt who had died in London. The deceased aunt died without a Will and because of this we faced considerable challenges:
- There were disputes and disagreements amongst the family members in deciding who would be appointed the legal representative in administering the estate.
- There was conflict with the local authority to enter the deceased’s house because her disabled son lived in the mother’s house under the care of the council.
- With no Will in place, the default rules determined the deceased’s money would pass to the surviving sons. This, however, was not suitable as both have serious disabilities and do not mental capacity manage money.
All of this resulted in more work, adding to cost and delay, which would easily have been avoided simply by having a Will in place!
Divorce on the cards
- I was contacted by Ms X as she wanted to have Lasting Powers of Attorney (LPA) in place. In the course of assisting her, I queried about her Will and it transpired that she did have one, which was done 5 years ago.
Ms was single having divorced 10 years ago and had 2 adult daughters in their 20s. Her existing Will named a friends as her executors (the individuals who administer estate on death) and even mentioned her ex-husband as someone potentially benefiting under her Will! If she left the Will as it is, I explained the following unexpected results:
- Given her daughters are now over 18 (since she made the Will), her daughters as not being the executors would have to rely and be dependent on the friends with regards to the administration process.
I was contacted by Ms X to do her Lasting Powers of Attorney (LPA). In the course of assisting her, I queried about a Will and it transpired that she did have one, which was done 23 years ago after her husband passed away. The Will was simple and left her money between her 2 adult sons equally.
So far so good. Unfortunately, Mrs X began discussing one of her sons (son B). He is married but has been separated for over 5 years. Whilst divorce appears to be on the cards, neither party has initiated it. I explained that as things stand, her sons will inherit their mother’s money equally (which was in the millions). When the son B receives his share of the money, his inheritance is at risk of being taken by the wife in the event of a divorce. Ms X did not want this to happen. So, I advised her to have a new Will in place and to have a trust in the Will to protect son B’s share.
It is all too common to forget about a Will and to keep it under review when personal circumstances change – as Ms X’s serves as a cautionary tale.