There is never a bad time to emphasise the importance of good planning.
The following are perhaps uncomfortable truths:
a) We are all going to die.
b) Rarely do we like to dwell on our own limited time on this earth.
c) A will is the best way of providing for our loved ones/those we wish to benefit from our accumulated wealth (big or small).
So, what about when we want to express that someone does not benefit from our finances after death?
The myth of testamentary freedom must first be understood and then accepted, to help those making wills.
Most people start with the thought:
I can give away my savings and property upon death to anyone I like, and the law about Wills supports this ‘freedom.’
This is unfortunately not the case.
However, I would suggest that one should approach the matter from a different standpoint:
- Does a Will make life easier for those I leave behind to deal with my assets?
The answer is almost certainly yes. A Will makes clear (or should make clear) what you want.
- If I do not have a Will, am I happy with what the intestacy rules provide? Do I know what that is, and do I want a direct “say”, even if it the intestacy do what I want at present?
The intestacy rules do not, for example, mean your wife gets everything (although they can, depending on how much you have left).
The intestacy rules do not provide for an unmarried partner (there is no such thing at law as a “common law” wife or husband).
An unmarried couple with children could find themselves leaving behind quite a problem in the event of an unexpected death.
- What claim could someone make if they consider they have not been “reasonably” provided for?
Whatever your Will or an intestacy situation (no Will) provides for, this can be modified by existing legislation. Claims for unreasonable provision have had statutory force since the 1938 Act.
The difference now is that we are more aware of these possibilities, and estate values have increased.
What can you do?
I would suggest talking to one of my colleagues at Herrington Carmichael LLP. While I confess that there are other fantastic solicitors and will writers available, I am a little biased!
It is important to note that each case is nuanced, but depending on your age and circumstances, the outcome you seek might be improved by considerations such as:
- Being clear in your Will.
- Explaining the position to all involved. In my experience, the chances of an individual’s wishes being respected increase greatly when understood, even if not agreed with by those affected.
- Making clear why you seek to prioritise an individual or individuals.
- Making clear that an exclusion has been made intentionally.
- Making clear any departure from any previous provision.
- Placing assets outside of your estate at an early stage might be an option – timescales are relevant, and this is not always the easiest solution to adopt (e.g., see section 10 of the Inheritance (Provision for Family and Dependants) Act 1975).
- Making provision, even in circumstances where you would prefer not to, but also considering conditional clauses – essentially taking a commercial approach that can be objectively seen as “buying off risk.” I still find it surprising that, in a commercial context, this is often second nature, but in private life, it is often discarded without thought.
One last point, though it may sound obvious, is that each person has unique family dynamics, responsibilities, and circumstances. Taking the time to seek professional help is, in my view, a clear decision. After all, it’s your wealth that you’ve worked hard to build – so it’s just as important to get advice on how to pass it on as it is on how to invest it.
Our Private Wealth and Inheritance Team at Herrington Carmichael LLP are experienced and well-placed to assist, please contact us.
