Why using a specialist private client lawyer can help you avoid a poorly prepared Will
Thursday 2nd December 2021
“Well you would say that” might be your first reaction, and rightly so. As a private client lawyer I clearly have a vested interest in the reaction to such a statement and there’s no hiding that!
However, the statement is hardly ground-breaking and I imagine most people reading this would accept that this is a common sense view to adopt. We of course know however that not everyone does use a specialist private client lawyer to make a Will and indeed there are a great deal of adults in the UK who have never made a Will at all.
I think it useful therefore to highlight some of the problems that a poorly prepared Will can attract:
- Missed tax planning opportunities – We know that inheritance tax receipts by HMRC are on the rise again and with the sustained hike in property values (which no doubt impacted on that tax take) and the potential shake-up of inheritance tax and capital gains on the government’s radar (albeit seemingly kicked into the long grass) it is more important than ever for individuals to gain a clear understanding of their tax position and, where necessary, consider their planning options. In my view, a key benefit of sitting down with a specialist private client lawyer is the process of going through a fact find together carefully to give the instructions context and prompt the right questions to be asked. This leads to individuals making better informed choices and gaining greater awareness of their wider affairs and tax planning options.
- Missed protection / succession opportunities – If an individual does not know what is achievable and what structures are available when it comes to making a Will, the likelihood of a less than ideal outcome is clearly enhanced. Particular care is needed when individuals are cohabiting; have children from previous relationships; have very young children; or have children with specific care needs to highlight just a few scenarios and a poorly drafted Will has the ability to cause serious problems and stoke family division. Those with family business interests, particularly majority shareholdings, need to take a great deal of care as the very future of the business following that individual’s death could be in jeopardy. Often, planning will involve trusts which is an area where professional advice is paramount.
- Invalid and / or contested Wills – I read recently that the number of contested Will cases finding their way to Court has increased for the third year in a row. That of course takes no account of the number of disputes that get settled outside of Court which I suspect have increased in a similar way. Whilst nobody can guarantee that a Will won’t be challenged after you have died by someone seeking to benefit to a greater extent than provided for in a Will, the information sharing process described above would throw up these potential issues and invariably lead to a discussion on the law to allow informed choices to be made. In turn, steps can be taken with that in mind to avoid any future doubt that a testator has applied their mind to that person and which may help a testator’s Will to be administered as intended. Using a specialist private client lawyer should also significantly help in reducing the risk of a Will being legally invalid by ensuring proper formalities have been explained; by being alert to unusual instructions which may be indicative of an issue behind the scenes; and by giving proper attention to whether an individual has testamentary capacity to make a Will in the first place. The risk of such issues going unnoticed must surely increase with the use of “homemade” or certain “online” Will platforms.
- Delays in estate administration – Due to a brand new process and system overhaul at the Probate Registry together with the inevitable and lingering impact of Covid-19, It has been a turbulent couple of years for the Probate Registry. The upshot is that a significant number of people attempting to obtain a Grant Probate in an estate have experienced long delays. Whilst that is frustrating, what is particularly unhelpful in such cases is additional delay caused by issues with the Will. Is there doubt that the Will has been signed and witnessed correctly? Is the wording of the executor appointment clause open to interpretation? Are there handwritten amendments on the Will? Are there references in the Will to other documents which might inadvertently be incorporated into the Will? Is there a badly worded Codicil which might have the effect of revoking the Will? Has the Will been kept in a good state or is it full of staple holes and paperclip indentations? A professionally prepared Will stored properly in safekeeping will help to reduce the opportunity for such problems to arise.
In summary, whilst this may be the first time you have thought about making a Will or whether you are on your second, third or tenth revision, the reality is that you will devote a relatively small amount of your time to what is often touted as the most important document you will ever sign. On the other hand, a specialist private client lawyer devotes much of their day to day working life to advising individuals on what would work well for their particular circumstances. The result is peace of mind which you’re unlikely to get by taking a shortcut.
If you are thinking about making or updating a Will, get in touch with one of the private client specialists today.