Making a Will

When you die you will need to pass on your possessions and money (otherwise known as your estate) to those family and friends who survive you. The best way to ensure your Estate is divided as you would like is to make a Will. This will enable your loved ones to share out you property and possessions as you wanted. Without a will your assets would be distributed according to the law, and this may not be as you would have liked. It is estimated that 60% of people die without ever making a Will.

Peace of Mind

If you have younger children then you can also state in your Will who will look after then in the event both parents die before they come of age, Having a Will prepared will allow you to have that peace of mind that your children will be looked after in the event of your death.

You can also make decisions about your funeral, whether you would like to be buried or cremated and other details such as music at your funeral. It would bring comfort to those people knowing they are carrying out your wishes.

What if I don’t make a Will?

If you die intestate (without making a will), this can cause problems for those you leave behind who have to deal with your estate. The law has rules to follow when distributing a person’s estate when they have not written a Will. This may not be how you wish for your possessions to be distributed.

Other issues may arise from different family members who may have a claim to your estate. Without a Will disputes may occur and Solicitors may need to be used to resolve any such disputes. This can cause families to come apart and be costly too.

Further, your assets may be unnecessarily taxed by the Government through paying too much Inheritance Tax. This may be avoided with professional advice with regards your financial assets.

Who can make a Will?

You are able to write your own Will and can now do this through the use of DIY will sites. However a will is a complex legal document and this is not advised, especially if you have an estate worth a lot of money. You really should consult a Solicitor or the Citizens Advice Bureau about how to make a valid will which will protect you and your assets. This is especially important if you need legal advice for complicated matters and you want to keep your tax liabilities to a minimum. Remember if the legal formalities for a Will are not followed a DIY Will may not be valid and cause further problems for those dealing with your estate.

How to make a valid Will?

The basic requirements for making a valid Will are:

• You have to be a minimum age of 18
• It must be written down, signed and witnessed by 2 people
• The will has to begin with it stating that this Will revokes all previous Wills
• Previous Wills have to be destroyed
• You have to be of sound mind and be aware of the effects of your Will
• The Will cannot be made due to pressure from any one else

With your financial affairs it may be worth consulting a professional such as a firm of solicitor who would be able to advise you of the most tax efficient ways to distribute your assets. Who can inform you of the Inheritance Tax laws and how to stop your assets from being over taxed unnecessarily.

What to include in a Will ?

Before seeking professional advice you should consider what will go in your Will, this may include:

• Property, possessions, money and other assets
• The beneficiaries, the people who you want to leave your assets to
• Guardianship of any children under the age of 18
• The person who will carry out your wishes, the executor of the Will

The executor of your Will can be someone you choose and name in your Will, otherwise a court can appoint an executor.

Who keeps the Will safe?

Once the Will has been written it should be kept in a safe place and the necessary people should be informed and told where it is. This may be the executor, a relative or friend. Where a Solicitor has written the Will for you, they would normally keep the original and send you a copy; however you may still ask for the original.

How often should I update my Will?

The government recommends you review your Will every 5 years, this does not necessarily mean you will have to change it. Also it is recommended that you review your Will after any significant changes in your life, financial or personal. Events to consider are:

• Getting married, divorced, having a child or grandchildren
• Moving house, selling  or buying new property or other investments
• Adding new beneficiaries or removing ones included previously

Changes to a Will are by ‘Codicil’ whereby additions, amendments or supplements may be added or a completely new Will may be written.

What are living wills ?

A living Will is a form of formal legal expression of wishes should a person not be able to make decisions about their own treatment in the future. This mental incapacity can be as a result of degenerative mental conditions or equally through injury causing unconsciousness, stroke or temporary mental incapacity.

The concept of living wills comes from the Mental Capacity Act 2005 which enables such a statement to be made with legal authority as regards such matters as advance decisions about potentially refusing treatment, including where this would result in death.

If you have not made a living will and are mentally incapacitated, the medical staff treating you will make medical and legal decisions for you.

2 types of Living Wills

These are known as Advance decisions and Advance statements.

An advance decision is a decision to refuse treatment whereas an advance statement deals with any other wishes you may have about how you may wish to be treated short of refusing any treatment.

Of particular importance is the fact that only advance decisions are legally binding, advance statements are not but are to be taken into account when deciding what is in your best interests.

Inheritance (Provision for Family Dependants) Act 1975

This Act provides provision for certain types of people to make a claim against an estate where they have been left out of a will . In order to be successful the Claimant must be able to show that objectively, the deceased failed to make a reasonable financial provision for them, taking into account all the circumstances of the case.

Depending on the category of person, “reasonable financial provision” can mean different things. The two categories are:

1. Spouse/Civil Partner – here the provision required is based purely on what is reasonable for the Claimant to receive in the circumstances, whether or not they need it for their maintenance.
2. All other applicants – here the provision required must be that which is reasonable for the Claimant to receive for his maintenance. This is obviously a lower standard. Maintenance itself is not defined by the act, but the Courts have construed it to be that which would be reasonable for the Claimant to live on, neither at a luxurious nor poverty stricken level.

Amongst the people entitled to claim under this act is any child of the deceased. This is a general category, whereby no age limit is imposed, so even an adult child of the deceased can claim, providing it can be shown that the deceased failed to provide reasonable financial provision.

Recent case law

In 1980 the case of Re Coventry appeared to limit the ability of adult children making claims against the deceased’s estate. In that case Oliver J stated that it is not enough to simply state that the Claimant is the child of the deceased in needy circumstances and the deceased did not provide for him in his will where there is money in the estate, rather it is necessary to establish some sort of “moral claim” to be maintained by the deceased, a claim beyond the mere fact of a blood relationship, some reason why it can be said that in the circumstances it is unreasonable that no greater financial provision was provided.

Since that time many have argued that the judge had placed a condition on the claim of an adult child, that they must show a ‘moral obligation’ in order for their claim to succeed. This may very well have limited the number of claims made by any adult children in similar circumstances, since they may have believed that their case would not stand up to such a precondition.

However, recently in the case of Illot –v- Mitson & Others [2011] the Court of Appeal reviewed the case law in this matter and have provided a new helpful guide on how to approach cases involving the claims of adult children.

This case really emphasised the Judges’ decisions in Re Hancock [1998], applied in H –v- Mitson [2009] and Espinosa –v- Bourke [1999], which stated that all the factors stated in the Act which the Court needed to consider when deciding whether there was reasonable financial provision have equal weight. No one factor could be used to undermine all the others.

With this in mind the Court in Illot –v- Mitson reaffirmed that which Butler-Sloss LJ said that the 1975 Act does not require an adult child to show in every case a moral or special circumstance to prove that reasonable financial provision was not provided. Rather Re Coventry merely shows that where the facts show the adult child is in employment with an earning capacity for the foreseeable future, it is unlikely they will succeed without some special circumstance, such as a moral obligation. Therefore in an appropriate case the Court is entitled to conclude that the claim should succeed, even if there is an absence of a moral or special circumstance.

The outcome of this decision is that when weighing up the factors to be considered under the Act, though weight may be placed on one side of the argument due to the lack of a moral or special obligation, this does not automatically rule out a claim and if it can be shown that the other side of the argument outweighs the lack of moral or special obligation, then the claim against the estate can succeed.

Probate law implications

It would appear that this case has reinforced the position of an adult child, showing clearly that they are in the same position as any other Claimant who has to prove their case under this Act and that Parliament clearly intended that an adult child should be able to bring a claim, even if he or she could maintain himself/herselfwithout claiming from the estate.

This may well lead to adult children in the future being more confident in making Claims against a deceased’s estate where other factors play an important role.

We can provide a substantive service for clients in this area, including:

• Advice on making a claim against an estate.
• Mediation between the parties to prevent litigation.
• Litigation, should the matter proceed that far.
• Where appropriate, advice on drafting a will to prevent such problems arising from the outset.

This note has been supplied courtesy of S Portnoy of Darlingtons Solicitors, well known solicitors in London. For advice on any aspect of wills, probate or estate administration, please contact Darlingtons on 0208 951 6666.

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