Malcolm Kyle

Any disagreement over a will can cause a significant delays, threaten the value of an asset and potentially freeze the inheritance if it’s part of a contentious probate case.

Here are some warnings about the situations which can spark a dispute over a will.

1. Witnesses: The law states that a will must be signed in the presence to two witnesses at the same time. However, the validity of the witness can be called into question if they weren’t present together when the will was signed. I always advise that the witnesses also sign using the same pen.

2. A Testator’s mental state: Can be challenged if it’s suspected that they weren’t capable of understanding what they were doing, or if they were pressured or coerced into making any part of the will.

If it takes a while to obtain probate, it can diminish the value of the estate. If this is a serious risk, the court can authorise the collection and preservation of assets pending the issue of a full grant.

However, just because probate has been granted, it doesn’t mean that there won’t be any further disputes. After probate has been issued, there could be disagreements over the interpretation of the will.

The key thing to take from this advice is that you need to be explicitly clear when writing a will, and consult specialist to help you because if it’s not right, there’ll be problems after you’ve passed.

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Will you still be around next week? Most of us work on the basis that we will be – which is entirely reasonable. However, over 1,500 people die every day in the UK and sadly an awful lot of them leave chaos behind them.

Statistics show that over 70% of UK residents have either not written a Will or worse in my view, have done so but the Will is worthless because it is either not properly drafted, is out of date, or cannot be found. Which means that all too often grieving relatives are faced with the financial and administrative headaches that come with someone dying intestate – in other words, someone dying without a will.

So while the odds are that you will still be with your family this time next week, it is worth making sure you have a will written – just in case.

Why you need a will

If you die without a will there is a legal framework designed to distribute your estate. However, it might not work quite as you think.

If you die married, but without children, your spouse will receive all your ‘personal chattels’ – car, furniture, stamp collection etc. The rest of your estate (including your house if it’s in your name only) will be split, with your spouse getting a legacy of £450,000 (or whatever there is up to £450,000) and half of whatever’s remaining. The other half goes to your parents, or, if they are dead, is split between your siblings. So if your house is worth more than £450,000 and is solely in your name, your spouse may have to sell it to release value to other claimants.

If you are married with children, then your spouse still gets your personal belongings, plus a legacy of £250,000. They also get lifelong interest on half of the remaining money, which goes into a trust for your children to receive on their 18th birthday. If that is what you wanted, that’s fine. If it isn’t, and you haven’t a will, best make one.

However, there are people who are much more vulnerable than spouses when it comes to intestate law – unmarried long-term partners. If you die leaving a partner behind, the Treasury will treat your estate as though you were single. So your partner will get absolutely nothing. Instead, your estate will go to your children, or if you don’t have kids, to your parents; or (in order of priority) your siblings, half-siblings, grandparents, aunts and uncles. And if you don’t have any family at all, the government will retain the entire estate, regardless of how many years you have lived with your partner, or what your wishes might have been.

There is an excellent and in-depth explanation of the Intestacy Rules on the Citizens Advice website http://www.adviceguide.org.uk

If you have children, then it is vital that you make a will so that you can appoint a guardian to look after them if both their parents die. If you die without doing this, your next of kin will be appointed as their carers. Again, that might be what you want, but it can cause problems if your next of kin are, say, elderly parents. Note too that if you are an unmarried mother with children and die without leaving a will, the children’s birth father will not automatically get custody. So make sure you have a will stating who you want to look after your children in the event of your death.

Once you have done this, don’t forget about it. If your circumstances change (you get divorced or remarried or you have your first child perhaps) you need to update your will. Otherwise your beneficiaries will face the problem of dealing with an out-of-date will.

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Published Date: 04 September 2010

By Graham Scott

Writing a will might seem a daunting task, but your loved ones will thank you for planning ahead, reports The Scotsman, as they publish advice on how to set out your wishes for after you’ve passed.

According to a recent Panorama programme, two-thirds of the population do not have a will. Writing a will is not as daunting as it may appear, but it’s important to get things moving by preparing a pre-will checklist before you have your will drafted.

Graham Scott suggests you carefully consider the following ten points.

1 DON’T SCRIMP - Think very carefully before being tempted by cheap “one size fits all” facilities, such as the DIY will packs available from some newsagents, they more often than not do not cover everything you need.

2 KNOW WHAT YOU ARE WORTH - Write down a full list of all your heritable assets (i.e. property) and moveable assets (i.e. cash, shares, consumer and household goods). This should give you a good idea of what your estate is worth in total and should help in deciding how to “divide the cake”.

3 GIFT ACCOUNT – In a similar vein to the above, set out details of gifts of cash or goods that have been made to children, other close relatives or friends within the past seven years. Any gifts above the value of £3,000 in any one year and made within seven years of a person’s death will, under current HM Revenue & Customs (HMRC) rules be treated as part of the deceased’s estate and therefore potentially liable for inheritance tax.

4 ANTICIPATE IHT – Should it be obvious that your estate will become liable for inheritance tax (IHT) it may be worth considering taking out a life insurance policy that will produce funds that may go some way to meeting any IHT liability on death. It is also possible to insure against gifts made within seven years of death from becoming part of a deceased person’s estate. Remember that when an estate does become liable for IHT, the executors will need to take out a loan or the beneficiaries will have to fund the tax payments initially from their own pockets because IHT is payable to HMRC before the assets can be realised by the executors.

5 TOGETHERNESS – Although a husband and wife will normally make separate wills (usually referred to as Joint or Mirror Wills), they may wish to discuss the provisions with one another in advance in order to ensure that each will is appropriately drafted. Usually, when a married person dies the major assets will go to the survivor (especially if there are IHT implications) or should they both die together (e.g. in a road accident) the assets will be bequeathed to the same named beneficiaries.

6 CHILD-CENTERED - In the case of second marriages, it may be prudent to think carefully about what would happen if dependent children were left in the care of a step-parent and how this would affect their eventual inheritance. Any natural parents in a second marriage who wish to ensure that at least part of their estate goes to their children (and is not gobbled up by the surviving step-parent) should think about including trust provisions that will ‘ring-fence’  the interests of the children, especially if they are below the age of adult responsibility.

7 DISINHERITING SOMEONE – Sadly, some parents do on occasion decide for certain reasons to disinherit an adult son or daughter. However there are circumstances in which a disinherited offspring might make a claim. In a less extreme case, a parent who simply wishes to delay passing on an inheritance to a younger adult can have the assets held in trust until the beneficiary reaches a set age.

8 FOLLOWING YOUR WISHES – Choose the executor (or executors) of your will carefully. A close relative or trusted friend is an obvious choice, but should be complemented by someone, such as our profssional solicitors, who has no personal interest in the distribution of the estate. The most beneficial arrangement is to have an odd number of executors so that any disagreements regarding an estate do not end in deadlock.

9 DISABILITY DIMENSION – Consider granting power of attorney at the same time as writing a will. Many people make the mistake of assuming that the executors will automatically be granted power of attorney should an accident or illness lead to a serious and permanent mental or physical impairment. A power of attorney document has to be drawn up separately – but this can be done simultaneously with the will.

10 NOT THE END - Unless you are particularly aged or in poor health, do not approach the writing of a will in terms of ‘putting your affairs in order’, as if this means any further action is not required. Draw up a future timetable to regularly review your financial circumstances, as any major changes in these will probably require an alteration in your will.

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