The Importance of a Properly Drafted Will

While most people don’t like to dwell on the idea of death and its implications, a well drafted will could save the deceased’s dependants years of legal battles and thousands of pounds in fees.

A number of people close to the deceased could use a poorly drafted will to raise disputes and potentially claim a portion of the inheritance. As expected, immediate relatives including spouses and children would be able to make such claims.

But this also includes former spouses or partners (if the person never remarried), people the deceased supported financially prior to his or her death, and any step-children to name a few. If the applicant is successful, the court can make an order where the beneficiary receives periodic payments, a lump-sum or even a property that was part of the estate.

In more recent times, the trend for the UK courts has reflected the strict interpretation of the Law when it comes to inheritance disputes and when claims are made by dependants who believe that their loved-ones have not made an adequate financial provision.

This has also impacted the life after death of even well-known celebrities, such as George Michael, when his former partner sued his estate for a share of the well-known singer’s £98,000,000.00 estate after he died.

Beyond the obvious shock that an executor or personal representative could face for such claims., a lengthy and complicated probate could be financially devastating for potential beneficiaries and cause havoc for any children of the deceased under the age of 18. Costs to cover the probate will be paid out of the deceased’s estate – something that can quickly drain a potential inheritance.

Michael Jackson, the famous king of popular music is an example of how staggering costs can accumulate. Some of his siblings felt that Michael had not made adequate provisions for them and all sorts of arguments unfolded including a dispute relating to guardianship of his children.

These and many other headlines, are only the tip of the iceberg, when it comes to highlighting the importance of making sure that your will is drafted in a water-tight way.

Seeking professional help when drafting a will can avoid several potentially devastating pitfalls down the line.

What is a valid will?

For a will to be legally valid, the testator (the person who makes the will), must be over 18 and of sound mind. The will must be in written format and it must be created voluntarily.

Being of sound mind includes not being under the influence of alcohol or drugs when writing and signing the will.

If there is any doubt as to capacity, a medical letter to show that the deceased was in fact of sound mind and capacity, is advisable.

Also, it must be signed and dated in the presence of two witnesses, both over 18. The witnesses need to sign the will too. Importantly, the testator cannot leave anything in the will for the two witnesses or their spouses.

Not doing the above could invalidate the will which will mean the deceased’s wishes may not be taken into account.

How to leave things for dependents

If the testator wishes to leave his or her dependents money or specific items, they must remember that any bequests will be carried out only after their debts and liabilities are paid out of the estate. Not accounting for debts and costs can mean not everyone will receive a pay-out.

If the testator makes a ‘pecuniary bequest’, this means they’re leaving a set amount of money for a dependent. For example, a grandmother may choose to leave £1000 for each of her grandchildren on her death. Pecuniary bequests are paid out before other types of bequests and can accrue interest if they’re not paid out within a year.

If the testator makes a ‘specific bequest’, this means they’re leaving a particular item they own for a dependent. For example, a deceased husband may wish to leave his wife a motorcycle he owns. As long as the motorcycle is still in his ownership when he dies, his wife should be able to inherit it.

A residual bequest is paid out only after a pecuniary bequest and if there is still money in the estate. It is usually a percentage of the estate after debts, taxes, costs and liabilities have been paid. For instance, the deceased may wish to leave a quarter of the estate to his brother. This can only happen after all liabilities have been paid and after all pecuniary bequests have been paid out too and only if there is still money in the estate.

There are other types of bequests testators may wish to explore too. For instance, conditional bequests require the benefactor to meet certain conditions before they can inherit. If a parent does not wish their 18 year old to inherit a large amount of money at a young age, they may set a condition that the benefactor will only inherit the sum when they reach the age of 25, for example. Other conditions may be set out too, if, for example, the testator wants the money to be used towards the deposit for a first house or education.

No valid will? The estate will be distributed according to the rules of intestacy

If the deceased made a will which is found not to be legally valid, their estate will be shared out using the rules of intestacy. Under these rules, only close relatives and married or civil partners can inherit a portion of the estate. This rule also applies when a will is not made.

This does not include former spouses or civil partners. However, if the separation was informal, the partner can still inherit. If the estate is valued at above £270,000 and the deceased has children, the deceased’s spouse would inherit all their personal belongings, the first £270,000 of the estate and half of the remainder of the estate.

While this distribution may work for some people, if the deceased wanted to leave a chunk of their money to charity or a distant relative, their wishes will likely be ignored in favour of the rules of intestacy.

The famous singer and legend Bob Marley is a case in example of what can happen when you don’t have a will. Bob Marley died intestate, leaving a plethora of claims for his 11 children and their mothers for a stake in his 30 million US dollar estate.

What could go wrong if the will is valid but not properly drafted?

While understanding the different types of bequests and their implications is important, there are a number of pitfalls that could occur if the will is not properly drafted.

Forgetting to name an executor – i.e. someone who will be responsible for the administration of the estate after the person dies – would mean that a probate court would name an executor instead. This may not be the testator’s first choice. It is therefore important to select family members or solicitors who the testator trusts to serve as executors.

Being too specific with a specific bequest could mean beneficiaries don’t inherit. If the testator wanted to leave his motorcycle to his wife, but specified that he wishes to leave his Honda motorcycle and later upgrades to a Harley Davidson but forgets to update his will, other dependants may raise a dispute about this. By not specifying the make or model, the testator leaves less room for potential disputes.

The testator may wish to leave certain dependents out of their will. But not specifying why they have done so, especially when it comes to direct relatives, could open up the will to disputes. Any costs will need to be recovered from the estate which could leave the rest of the beneficiaries with little to inherit. Further, if the applicant is successful, this would override the will and they could get a pay-out.

From ensuring the will is valid, to understanding the different types of bequests, to avoiding pitfalls, writing a well-drafted will is an incredibly complex task which is usually best left to professionals.

Are You Working From Home? Are You Protected?

https://www.youtube.com/watch?v=JhMff2sDrDo

Many of us who were once glued to our office desks have had to, in the last few weeks, come to terms with working from home.

I am writing this blog from my wooden dining table, aka my new “office desk”. The sun is streaming through the conservatory window and I can hear the birds indicating the onset of spring. A month ago, I was sitting at my desk on the Strand, finalising an application which, once completed, was marched briskly up the street to be lodged at the High Court. I even had time to stop at the Twining’s tea shop for an elderflower and strawberry infusion before darting back to the office. Oh – how life has changed!

Not just for myself, but for all of us. So many people are working from home right now that at least I don’t feel alone. I am comfortable in my home environment. I feel good. But am I safe?

We may be lulled into a false sense of security working within a familiar environment. Being at home does not necessarily mean that you are safe to work in such a setting. As a personal injury lawyer, I am constantly pondering about hazards and my current situation has made me think about safety for all those who have no choice but to work from home. Our homes are considered safe spaces for us but you need to make sure that you are secure.

Here are a few tips here for working from home and what you need to think about from a health and safety perspective:

Avoiding risk, risk and more risk

Risk assessments – Saracens Solicitors undertook a risk assessment for all members of their work force, be it admin staff, accounts staff, employees or self-employed consultants such as myself.  They have embraced Health and Safety Regulations to make sure that my work environment is safe and that both myself and the data on my PC, laptop and phones has been secured and protected. I underwent various risk assessments in person and by video call.

If the organisation you work with have not done this for you, ask for it to be done immediately – It is the law and you should insist on it.

What sort of risk assessments should you expect?

I’m not advocating that a Health and Safety officer walk around your home with a clip board and checklist. Quite simply, an assessment should consider your workspace, the desk you are seated at, the chair you are using, the situation with your wiring and if it is secured to avoid you tripping or falling and if your screen is adjusted to your eye level. If you have been provided with certain equipment, such as headphones for taking calls, then think about whether they are adjusted to the correct volume.

Breaks still apply

In the office it’s easy to get up from your desk and pop out for a snack or take a break. When you are at home (especially if you are self-isolating) you have to make sure that you pace yourself with regular breaks away from your screen rather than stay seated in one position for long periods.

At the moment it’s not clear how long this pandemic is going to last with the government view on this changing on a daily basis. You might need to insist on your employers carrying out a basic workstation checklist assessment via video call. I’m sure they’ll be happy to undertake one.

Co-operation from your end involves you avoiding staying in the same position for too long, stretching, looking away from your screen to rest your eyes and your brain. Make sure that your workspace is clear and that there is good lighting at your desk. Think of whether your chair is comfortable for you and provides you with enough back support to reduce a poor posture – a poor posture often leads to spinal and neck problems.

Your well-being in general

It’s also very important to ensure that you keep in touch with your colleagues and your line manager. Human interaction is fundamental to your mental well-being and happiness. It’s very easy to suddenly feel that you have been left in a vacuum to fend for yourself, which causes anxiety when working alone. It does not need to be that way.

Think about this and ask your boss to set up a channel on application platforms such as Microsoft Teams, Slack or WhatsApp group chats. Your employers have a health and safety obligation to maintain your mental health and well-being.

If you are working in a group or a team, stay in touch with your team and don’t feel embarrassed about it. Ask your manager to give you the correct tools and a platform for sharing updates and feedback about what your colleagues are doing. Your employer must provide you with training to resolve any working from home concerns you may have.

The current coronavirus pandemic is dominating all global headlines and as it continues to develop, it gives rise to many new areas of risk which all employees and employers need to be alert to.

If you have been affected by any of the issues raised by this article or have any health and safety concerns as an employee or contractor, please get in touch directly via email at mpopat@saracenssolicitors.co.uk, or call Saracens Solicitors on 020 3588 3500.

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