Where there’s a will, there’s a way
Where there’s a will, there’s a way
When thinking of making a will, the idea of a
Victorian lawyer taking down the last instructions at the bedside still springs
to mind for many people.
And
the 19th century lawyer would find things pretty much as they were if they time
travelled to 2017, but a major change to how people can say what should happen
after their death is likely to happen soon.
If the proposals from the Law Commission get
the go ahead, the law is likely to catch up with technology, and in future we
could see emails and other simple expressions of intention being acceptable.
But
in the meantime, the only way to be sure of what happens after you die is to
make your will following the formalities that have been in place for hundreds
of years. That is particularly important
for those who may be living with partners, for whom the current law offers no
protection, or where there are young children, for whom the choice of guardians
may be important. Yet it’s estimated that around 40% of the adult population
don’t have a will.
To be
valid, a will must be in writing and be signed by the person making the will in
the presence of two or more witnesses, who must also sign at the same time.
Without
a valid will, the division of assets is decided by the Intestacy Rules
under which, typically, the whole of the state of someone who dies leaving no
surviving spouse or civil partner will go to children, or if they have none, to
parents or other family members. If
there is a surviving cohabitee they could apply for “reasonable financial
provision” under the Inheritance (Provision for Family and Dependants) Act
1975, but this is a very slow and potentially expensive option, and in the
meantime, they may be blocked from living in the couple’s home if it was not
held in shared ownership.
The main proposal from the Law Commission would see the Courts able to
recognise wills that have not followed the existing strict rules, so long as
the deceased's testamentary intentions are clear. That will include provisions to recognise electronic
wills, if fraud and undue influence can be ruled out. It is also intended that
new rules would take better account of conditions such as dementia, which
affect decision-making.
Said Ben Talbot trust and estate law
specialist with Gamlins Law: “If
these proposals go ahead, it will bring the law relating to will writing into the modern world, which is good news
as long as there is sufficient protection, particularly for the elderly and
vulnerable. But nothing is going to
change right away, and even if the rules do change there is likely to be a
period of uncertainty during which any ambiguities in the new rules are tested
in the courts, so for the time being it’s important that wills comply with the
long-standing rules. Not having a valid
will in place can create a lot of stress for surviving family, at what is
already a very difficult time.”
He added: “Making a will is something
that people often put off, perhaps because they find it hard to think about it,
but it’s the only way you can be sure of what happens when you die, and there
are issues that will be important at different life stages. If you have children under 18, it’s likely
you would want to have named guardians to care for them, or to make special
provision if a child of any age has limiting physical or mental health issues. Older people may want to make plans to
mitigate inheritance tax, and cohabiting
couples may want to ensure property or assets pass to each other, as they do
not have the protection that comes with marriage or civil partnership.”
The
consultation period will run until 10 November 2017.
ENDS
Web site content note:
This is not legal advice; it is intended to provide information of
general interest about current legal issues.
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