The news was abuzz this week in America when a document found in a couch belonging to Aretha Franklin was declared the singers last valid will (read article
). This interesting case highlights, yet again, the need for care when making wills and the pitfalls that can arise if you ‘do it yourself’!
Of course, it is the case that you do not need
to engage a professional to help write your will. However, despite recent developments in terms of how wills can be witnessed, there are several serious risks to a homemade will.
Witnessing a will
Procedurally, whilst a will in everyday language is valid, many don’t realise the need for two witnesses who are not beneficiaries or their spouses (and, preferably, who aren’t executors either), to simultaneously witness the will being signed. Witnesses can now be at a distance, through glass or watching remotely, following changes to the law made during the pandemic, but errors in this process can render a will ineffective.
Validity of a will
In general terms, for a will to be valid it needs to be made by a person who has capacity and understands its effects, and it needs to be made voluntarily and without pressure. This may seem obvious, and in most cases this is not an issue, but if a person’s capacity is in any way borderline, the person is elderly, or if decisions being made in the will may mean it is challenged in due course (eg not leaving anything to a particular family member or members who may have expected something ordinarily), the involvement of a third party in preparation of the will can build the evidential base as to the validity of the will in the event of a later challenge. Also, advice can be given as to the wisdom of certain gifts or exclusion of persons from being provided for in the will; an issue which may give rise to potential future challenge.
Practically, whilst we are at liberty to do what we wish with our property and belongings, it may not be realised that, depending upon the size of the estate, there could be real downsides in terms of tax, giving certain gifts to others, or structuring legacies in a certain way. Professional advice can seek to ensure that inheritance is passed on in a tax efficient way so that loved ones, rather than HMRC, obtain the benefit.
Avoiding future challenges to a will
Looking at the more everyday aspects of planning for one’s future, professional advice can help to assist with the practical arrangements needed to ensure loved ones don’t have extra difficulties following one’s death.
In the case of Aretha Franklin, there has been years of litigation (at who knows what expense) as the will was found by chance in circumstances where no-one seems to have known it existed. Involvement of a professional should prevent this, and advice can also be given as to how best to ensure that one’s personal affairs are in order. Reviewing comprehensively the wider aspects of estate planning by, for example, ensuring that all assets are taken into account, including digital assets, which are an increasingly important aspect of one’s estates. Additionally, advice can be given as to Lasting Powers of Attorney, which can be used if one loses capacity as opposed to dying.
What happens if I don’t write a will?
It is a common myth that there is no real need for a will as ‘it will all go to my partner / children anyway’. It is true that, in the absence of a will, one is ‘intestate’ and there are specific rules which prioritise family members in a certain order. However, there are real risks to relying on this as, for example, only the first £270,000 (changing shortly to £322,000), plus half of everything above that amount, goes to the spouse or civil partner. Thereafter, there is forced provision for children.
If spouses or civil partners are estranged but never formalised their separation arrangements, this can cause serious problems if there is no will or the one in existence has not been updated. Equally, for those who have divorced or indeed never married or entered into a civil partnership, it is worth remembering that divorce/marriage renders any previous will invalid (unless special provisions are made prior to marriage in certain circumstances), and the law continues to fail to recognise long-term committed relationships which have not been formalised.
For those who have blended families, it is also the case that the intestacy rules may cause unexpected results in terms of prioritising some family members over others. Again, the absence of a will, particularly if one has children, may also give rise to family arguments after one’s death, including who should care for the children.
Wills and Lasting Powers of Attorney are crucial documents and everyone should have them in place. Whilst professional advice comes at a cost, it can be vital to ensure wills are effective and cover all relevant matters so as to avoid undue distress and expense for those left behind.
Here at DMH Stallard our Private Client Team
is happy to assist on all aspects of future planning. Consider getting your affairs in order for the loved ones left behind and don’t delay. Take the story of Aretha Franklin, and Lisa Marie Presley for that matter, as your example of what could happen if you don’t.