Top 10 mistakes clients make about wills, and how we can put them right
Of course, one of the biggest mistakes anyone can make is dying without a Will, and it’s a sad fact of modern life that more than two-thirds of people in the UK don’t have one. However, even where there’s a Will in place, mistakes or oversights can be made, and it’s more important than ever to consider as many eventualities as possible. Here are a few examples of common ‘blind spots’.
Thinking a spouse automatically gets everything if they die without a Will
People aren’t always aware of what happens if they die intestate. If they die leaving a spouse or civil partner, they get the first £250,000 and personal belongings outright, and half of any balance over £250,000 as an absolute interest; direct descendants share the other half. Only if assets are worth under £250,000, or where there are no children, does the spouse inherit everything.
Believing marriage or divorce doesn’t change a Will
Clients may not realise that if they marry or enter into a civil partnership, their Will becomes invalid automatically. They can, however, make a Will in anticipation of marriage that wouldn’t be revoked. If they divorce, their former spouse is automatically excluded from a Will following the decree absolute.
Failing to think about the guardianship of children
Couples aren’t always aware that they can name in their Will the guardian(s) who would raise their children if they were to die. Making a Will provides a useful opportunity to think about who they would like to take on this important responsibility. Many confuse an Executor with a guardian, not realising that these are distinctly different duties. They can also appoint trustees to manage any money that the children may inherit before the reach adulthood.
Thinking trust planning is too complex, relying on family members to do the right thing
Family relationships today are often complex, so it’s easy for people to overlook all their potential beneficiaries, in the belief that the family will look after their interests. Where a testator is part of an extended family and wants to provide for everyone satisfactorily on their death, they will need to plan carefully, and it can make sense to set up trusts for beneficiaries.
Excluding step-children or foster children
Making reference to ‘my children’ in a Will won’t automatically cover stepchildren or foster children. In order to provide for everyone, all children who are to inherit should be explicitly named in the Will.
Disinheriting family members without giving a reason
If a testator is planning to leave a dependant out of their Will, following the decision in Ilott v Mitson, they need to be as explicit about the reasons behind their decision as possible, preferably in writing. If charities are to benefit instead, then having close links to the charities is important. If not, those excluded may find it easier to mount a successful challenge under the Inheritance (Provision for Family and Dependants) Act 1975.
Lacking full mental capacity
In order for a Will to be valid, the testator needs to have mental capacity. If they are mentally compromised, perhaps due to the onset of conditions such as Alzheimer’s disease, or on heavy medication when the Will is drawn up, it could later be contested.
Not making provision if a gift fails
If a gift is made in a Will, but the beneficiary predeceases the testator, there needs to be a fall-back plan, called a gift over clause. Yet another good reason to keep a Will under regular review.
Forgetting their digital assets
These days, it’s important to leave instructions as to what should be done with digital assets such as photos, emails, music downloads and the content stored in social media accounts. With more and more people regularly using services like online banking, PayPal, Facebook, Twitter, Amazon and YouTube, decision need to be made as to what should happens to these too. Research carried out by YouGov found that 52 per cent of respondents said that no one would be able to access their digital accounts if they died, as they hadn’t made arrangements that would allow these to be dealt with.
Thinking a Will is forever
As life changes for all of us over time, it’s important to ensure that wills are reviewed and updated on a regular basis. A new Will signed, dated and correctly witnessed automatically revokes and cancels any earlier wills that may have been made. It also gives valuable peace of mind that everyone and everything has been adequately provided for.
If you’ve come across other common mistakes and misapprehensions and would like to share them with others, then please do get in touch.