With the number of contested wills cases increasing, people often ask us if it’s really necessary to make a will.
It always surprises us just how many people don’t have a will. And when we speak to clients about making a will very few of them are fully aware of just how important it is to have one.
We generally advise that as soon as someone buys a house or a couple starts a family then they should consider making a will. Not only must you think about where you want your possessions to go when you die but also who is going to look after your children in the event that you predecease them whilst they are under the age of 18. We also ask clients to keep their wills under review as circumstances can change. For example you may get married or have children or grandchildren, get divorced, receive a large inheritance or even win the lottery.
Marriage revokes any will in place, unless you have made your will in contemplation of a future marriage to a named person. If you get divorced it will invalidate any gift you may have made to your spouse, so it will be treated as if they had died before you.
Essentially, having a will in place gives you peace of mind and usually ensures that your property and possessions go to those you want them to go to, such family and loved ones, rather than being shared out in accordance with the statutory intestacy rules laid down by the Government. The intestacy rules could mean that those you had intended to receive a larger share of your estate may receive little or nothing, whilst others may benefit who you may not have wished to inherit.
There is a big misconception that if you are married you do not need a will since everything will automatically pass to your surviving spouse. WRONG. If you die without a will then you die intestate and the intestacy rules are very strict. For example, as the rules currently stand (July 2023) if your whole estate is worth less than the statutory legacy of £322,000 only then will your spouse receive the whole of your estate. If your estate is worth more than this sum and you have children then your spouse will only inherit £322,000 together with the deceased’s possessions and just 50% of the balance.
Your estate is likely to include the family home and another important factor to consider is whether this is held by you and your spouse as joint tenants or tenants in common. Under the survivorship rules if you and your spouse hold property as joint tenants then the property on your death will automatically pass to your spouse. This will then fall outside of the statutory legacy. Therefore if your estate includes the jointly owned family home and investments of, say, £322,000 then your spouse will receive the house as well as the £233,000 investments..
It is usual for a married couple to own their home as joint tenants. However, some couples choose to own as tenants in common. What this means is that you each own a definable share of the property and on your death (assuming you die first) your share will not automatically pass to the survivor but will pass in accordance with your will or the intestacy rules.
So when you buy a house it’s vitally important that you discuss these two options with each other (and your solicitor) very carefully.
If you die intestate without having had any children then your spouse will receive your entire estate.
Basically ensuring you have a valid will in place will help to ease the already difficult and stressful time for those left behind. It really is our advice that every adult should plan ahead and have a will in place. Making a will is a fairly straightforward procedure and really shouldn’t be off putting.
The Inheritance Act allows a court to override the provisions of a will (or even the intestacy rules) and to distribute the estate differently. Claims under the Inheritance Act are on the increase, but we wouldn’t regard this as a reason not to make a will.
It is part of the will draughtsman’s duty to consider whether an Inheritance Act claim is likely to be made and advise on what steps can be taken to pre-empt a contested will claim so as to avoid costly litigation in the future. A well drafted will can avoid a great deal of family disharmony, not to mention thousands of pounds in legal costs that can be incurred when contesting a will.