InsightsInsight - Wills and Probate - POSTED: November 12 2019
Do I need a Will?
For most of us making a Will is not high on the list of priorities, however everyone needs a Will despite thinking otherwise.
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Planning for the future and putting a Will in place is something that needs to be considered by everyone.
If a person dies without leaving a Will, their estate will pass via the intestacy rules, which means that only married or civil partners and some other close relatives can inherit. Similarly, if someone makes a will but it’s not legally valid, the rules of intestacy decide how the estate will be shared out, not the wishes expressed in the Will.
It goes without saying that this may not be ideal depending on the family circumstances and most people will want to ensure they are able to control the destination of their estate. Interestingly, life’s biggest milestones are also the best times to make a Will but are often the busiest times so this task can easily be forgotten.
Starting a family is an exciting time for all and also a very good time to draft a Will or update an existing one. A Will does not just have a single purpose and appointing guardians is another important element. If the worst should happen, it gives the opportunity to ensure children would be cared for by friends or family.
Purchasing property is another time to think about putting a Will in place. If you own the property with a partner, depending on how you hold your property, each share may pass to the joint owner automatically, or it may pass in accordance with the intestacy provisions. This is an ideal time to discuss matters with a professional to ensure property will pass in accordance with specific wishes. It may also be the time to discuss tax planning.
With second marriages and ‘blended’ families on the rise, Wills can be structured in such a way to afford protection for all parties involved. Putting a Will in place ensures new partners can also benefit from the estate while safeguarding the estate for children.
These are just a few reasons why circumstances may dictate a Will is necessary. However, having a Will in place generally makes life easier for the family you leave behind. It creates certainty in your wishes and means that they do not have to make any tough decisions, particularly if there are disputes within the family.
There is a current example of this in the news in the case of Mr and Mrs Scarle. Two step-sisters asked the court to rule on which of their parents died first. Mr Scarle did not make a Will, while Mrs Scarle made a Will but did not include her step-daughter. The step-sisters disputed who died first to each try to inherit; one sister would have inherited under her mother’s Will if Mrs Scarle was the survivor and the other sister would have inherited under the intestacy rules that applied to her father if Mr Scarle was the survivor.
The general rule in this instance is governed by Section 184 of Law of Property Act 1925 and provides that when it’s impossible to work out who died first, the younger is deemed to have survived the elder. The Court ruled that it wasn’t possible to work out who died first and therefore Mrs Scarle, as the younger of the two, was deemed to have survived her husband and her daughter inherited the whole estate under her Will. Mr Scarle’s daughter did not inherit anything. If Mr and Mrs Scarle had made Wills together and discussed their estates with a professional, this scenario could have been avoided and both sisters potentially could have inherited.
This content is correct at time of publication
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