24 November 2016
Stay in control: create the legacy you want
The number of contentious probate cases is on the rise for a number of reasons. Baby boomers have never had it so good yet their millennial grandchildren struggle to get on the property ladder. Family structures are becoming increasingly complex and we are living longer than ever before - giving rise to accusations that the deceased person lacked capacity when the will was drafted. So how can you ensure that your wishes are respected and that there are no gaping holes in your will?
It’s always worth doing one
The intestacy rules – when the law dictates how your estate should be distributed – are no substitute for making a will, as the rules may be at odds with what you might want to do with your estate. For example, if you pass away leaving a spouse behind, plus children from a first and second marriage, your current partner will automatically benefit from the estate. But what if you would like your children to receive some of your savings?
Seek professional advice
DIY or online will services might seem like a bargain, but they are usually written in a generic way and often have huge gaps in their provisions. This could give rise to your will being contested in the future. Furthermore, a lawyer will keep all of your files indefinitely including detailed attendance notes; they will consider the capacity of the person making a will and have one to one meetings with their client to ensure they aren’t under any undue influence. Online services do not consider these mitigating factors and for this reason will not be able to protect your final decisions against those who wish to challenge your will.
You don’t have to cut someone out completely
In our experience, most contentious probates arise when someone has been completely cut out of a will. As such it’s worth considering making reasonable financial provision for a family member rather than dismissing them completely to try and prevent your wishes being contested.
Consider lifetime gifts
If you have children and one of them has received more financial help during your lifetime – for whatever reason – you may want your remaining children to receive an equivalent amount (or to reduce the amount going to the child who received the benefit of a lifetime gift) so that all of your children have been equally provided for. This can be done by making provision in your will for accounting for lifetime gifts.
There are a variety of different trust arrangements that can be tailored to your specific needs. But professional advice is essential. As family structures become more complex, not only do you have to think about your spouse’s (and possibly your new family’s) needs, but what if you have children from your first marriage? Do you need to consider ring-fencing a proportion of your assets for them for the future?
Providing a rationale for your decision
One of the most famous cases around contentious probate in recent years was between a mother, Melita Jackson and her daughter Heather who did not receive any of her mother’s estate after she died, as Ms Jackson had dedicated the majority of it to three animal charities. To support the will, Ms Jackson wrote a letter to record why she did not want her daughter to inherit, but – crucially – did not include why she believed the charities should. Her will was successfully challenged which meant her daughter was subsequently awarded a large share of the estate.
The devil really is in the detail when you want to create a will that’s watertight and sets out your wishes clearly. Being aware of where your will falls short and rectifying it immediately is also key. This is only achievable by following the advice of an independent, experienced lawyer.
To speak with Lucy about creating a will that reflects your wishes, call 01753 279030 or email email@example.com.