Everyone knows they should have a valid Will. If you have not prepared one and have a solicitor, you probably dread the question, “so have you thought about making a Will?”, that happens every time you meet them. We promise – they are not badgering you to be annoying. Not having a valid Will can lead to serious consequences for your loved ones when you die. This is not only in terms of the distribution of your Estate – dying intestate (i.e. without a will) is likely to mean you have not appointed a guardian for your children should you pre-decease them when they are young.
If you are unmarried or not in a civil partnership and wish your partner to inherit your Estate when you die, having a valid Will is imperative. There is no such thing as a common law marriage in English law and cohabitees have no rights under the laws of intestacy. If there is no Will in place, your partner may end up without any entitlement to the home you shared or any of your personal belongings.
The contents of a valid Will
For a Will to be valid it must be:
- In writing,
- Signed in the presence of two witnesses, and;
- Made by a person who is sound of mind and free from duress.
In theory, a Will which satisfied all the legal requirements above could be written on a single sheet of paper and does not need to be complex. By way of example, the subject of the 1906 case, Thorn v Dickens[1] was a Will which simply stated, ‘All for Mother’. However, the testator was in the habit of calling his wife ‘Mother’, as the mother of his children. Therefore, there was ambiguity as to who was being referred to as ‘Mother’ – the testator’s wife or his actual mother. The court decided it was the former, and awarded her the estate.
Thorn v Dickens illustrates how inadvertently confusion can occur when a Will is drafted by someone who does not understand the nuances of law. It is unlikely the testator ever dreamed he would one day cause a court battle between the two most important women in his life as he wrote the words, ‘All for Mother’. After all, he knew who ‘Mother’ was. But unfortunately, there was room for interpretation.
This case highlights one of the disadvantages of a DIY Will. Yes, they may cost little to nothing and require a quick trip to W H Smith, but the ramifications if the document is not correctly drafted may be severe. In the case of Thorn v Dickens, a lawyer would have ensured ‘Mother’ was named to remove any possibility of ambiguity.
Reducing inheritance tax
Another advantage of instructing a solicitor to draft your Will is they understand the enormously complicated and much-loathed beast known as inheritance tax (IHT). Once a worry of only the wealthiest in society, due to the steady rise in house prices, more and more of us are destined to leave an estate which is worth more than the tax-free threshold of £325,000 (or £650,000 if you pass your allowance onto your spouse after your death).
A solicitor will assist you with establishing what your likely inheritance tax obligations are likely to be. This will include any tax-free entitlements under the new Residential Property Nil-Rate Band which was introduced in April 2017. This provides a tax-free threshold of up to £1,000,000 for couples who pass their residential home to direct decedents (i.e. children, grandchildren).
If the value of your estate is likely to surpass any tax-free allowances you are entitled to, a solicitor can help you avoid paying inheritance tax by gifting some of your wealth while you are still alive.
Other advantages
Using a solicitor to draft your Will has other advantages. For example, if you have overseas property or offshore investments, a solicitor can ensure any tax issues attached to these are considered. A lawyer will also provide additional support, such as organising the transferring of the inheritance tax nil-rate allowance after the death of one spouse.
But most important of all, a solicitor, who has undoubtedly drafted many Wills in their time, knows the right questions to ask to ensure your Will provides for every eventuality. For example, who will care for your pets after your passing? Should you consider putting your property or family business into trust to minimise your inheritance tax risk? In addition, a lawyer can advise you on and create a Lasting Power of Attorney, ensuring that if you lose mental capacity, someone you have chosen and trust has the authority to manage your affairs.
Having a solicitor draft and execute your Will may require a larger investment of money than you would like, but the long-term benefits can result in your nearest and dearest being saved a great deal of time, stress, and money after your death.
Saracens Solicitors is a multi-service law firm based in London’s West End. We have dedicated and highly experienced private client solicitors who can advise you on drafting a Will and inheritance tax planning. For more information, please call our office on 020 3588 3500.
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[1] [1906] WN 54
