During the COVID-19 pandemic, an increasing number of people are finally getting Will writing off their To-Do list. Writing a Will is a task that most people know is important. We know that putting a Will in place saves our family and loved ones from a great deal of anxiety and trouble after you have passed away. There is never a situation where not having a Will is a better plan than having one.
Am I too young?
Over 60% of adults don’t have a Will, and this is across the US, UK and Canada. This means one out of two adults is woefully underprepared for their own death! On a daily basis, not many of us like to think about our inevitable demise, it’s morbid and something that most of us don’t want to think about. Like going to the dentist or sitting an exam, there are some uncomfortable scenarios that we put off for as long as possible. Writing a Last Will and Testament should not be one of them.
However, there comes a time when we need to face the cold hard reality that we won’t live forever and you need to write a last will and testament. Granted, writing a Last Will and Testament isn’t the most fun you can have, and when you’re young there are a million and one exciting things you would rather do but it’s really not such a long and laborious process as you might think. To help you see the benefits of having a Will we have outlined the reasons why you’re (almost) never too young to write one.
The Young Ones
In 2014 Rik Mayall, a star from the popular ‘The Young Ones’ TV series passed away unexpectedly without leaving a Will. This resulted in extra fees and expenses for his surviving family, never mind the added turmoil of not knowing how he would have liked his estate to be shared.
But this happens all the time. If you took just musicians, you could form a supergroup of Prince, Jimi Hendrix, Amy Winehouse, Billy Holliday, Bob Marley, Barry White…the list goes on.
It is examples like this that remind us that death won’t wait for us to have our affairs in order. Death also doesn’t care if you’re 21 or a ripe old 98 and that means you should be prepared. If you’re under 18, don’t worry about a Will just yet but once you are 18 or over, it is your responsibility to outline how you would like your assets to be distributed after death or that privilege will be taken from you.
In England and Wales, if you die without a Will but are married or in a civil partnership (without children), everything goes to your spouse or partner. If you do have children, the division of assets becomes more complicated, and it depends on if the property was jointly held or not. For couples that simply live together, there is no entitlement under the current UK intestacy rules and to pursue a claim could involve costly legal action. If there are no surviving blood relatives at all, the whole estate goes to the Treasury.
But I’m not worth anything!
Traditionally Wills were both expensive and inconvenient to prepare. The process involved making an appointment with a solicitor, which would usually have to be coordinated with a spouse. Knowing that a simple change in your personal or financial circumstances would render the document out of date.
As a result, people would write a last will and testament as a once-in-a-lifetime activity. Rather than preparing a document that is written and updated throughout your life.
The thing is, you have absolutely no idea how much your estate will be worth when you die. The chances are you will not die today even if you write a Will. If you did die today, it may be as a result of an accident, somebody was negligent and is ordered to pay compensation to your estate. Your estate can easily be worth much more after you have died than it ever was when you were alive.
Wills are not just for the wealthy
You don’t only write a last will and testament if you are rich, as it simply declares your wishes and provides instructions for your family. Even if you don’t have many assets to bequest, a Will can outline the guardians for your children; set out health care wishes, and even disinherit people. Therefore, even if you’re fairly young and healthy, you may want to consider putting together a Will if:
- you own property or have savings, stocks and bonds.
- you have children, and
- You are joining the military or other occupation where your life is at risk.
As we have stated above, if you don’t provide instructions for your assets in the form of a Will, the government will dispose of it following UK intestacy rules.
Protecting your loved ones
The UK laws on intestacy do not consider your individual circumstances and it doesn’t know or care for any unresolved family disputes. Therefore, if you do not set out your intentions your estate could fall into the wrong hands. This could have a terrible result for your loved ones as distant relatives, ex-partners and uninvolved parents could be the ones to legally gain from your death. Would you not prefer to be the person that determines where your hard-earned money, cherished pets and beloved children go?
Another consequence of not having a Will is that it virtually guarantees that your surviving family will face more costs and stress. As Rik Mayall’s death demonstrated, your estate will incur extra fees and delays if you choose not to write a last will and testament. Your family will have to watch as the estate gets distributed by the government which could result in arguments and expensive legal battles. These added burdens can all be avoided by simply having a Will which will ensure your final wishes and give your family peace of mind.
The number one reason that people don’t write a last will and testament is that they don’t want to pay the legal fees. It can be hard to justify the cost of a Will when you don’t come home with a tangible product or see the benefit for yourself. But this is financial planning for your loved ones and the minimal cost involved is nothing compared to the reassurance you will feel knowing that your assets and your loved ones are protected.
Can a will be contested?
Yes, although the person contesting the will must be a spouse, child, cohabitee or a person who is expressly mentioned in the will, or a previous will. The person must also ensure they have valid legal grounds to contest a last will and testament successfully.
Grounds for appeal include the following:
Lack of testamentary capacity – The person creating the terms of the will, known as the testator, must be of sound mind when they create and sign the document. They must understand the full extent of their estate and possessions and understand who they are choosing to include and exclude.
Lack of due execution – The testator must sign their will in the presence of at least two formal witnesses who are present at the time of signing. Each witness must then also give a signed receipt that they have witnessed the signing of the will by the testator. If there is any evidence to suggest otherwise then a claim of lack of due execution may then be raised.
Undue coercion – A claim may be raised if there is significant evidence to suggest that the testator has been manipulated into submitting unfair or invalid terms within their will. Due to the nature of this claim, the supporting evidence must be of a high standard in order to stand any chance of it being successful.
Fraud – It’s possible to contest a will if the claimant has valid grounds to suggest that the will has been forged in any way. For instance, if a testator instructs another person to formalise the terms of their will, and then that person submits false terms to benefit themselves and forges the signature of the testator, then the will may be overturned and declared fraudulent.
You hear it all the time – stories of children of a first marriage being left out of the will as everything goes to the new spouse and their family. Stories of incorrect wills being written and disputed by everyone who believes they have a cause or should be given Aunt Mary’s silver, or Uncle Sam promised me his collection of Pokémon cards.
It doesn’t end there! There has been plenty an occasion when siblings, aunts, uncles all contest the will as they do not think that they were afforded the correct amount of the estate as they believe they should receive.
A safe defence against this is twofold:
- Write a will – ensure that this covers everyone and is explicit with your wishes.
- Appoint an executor of your will. This will usually be a trusted person, with experience of dealing with money and… well, look forward to next weeks’ blog for our second line of defence on misappropriation of your estate!
Written by Andrew Calister