UK: Will To Win

Last Updated: 17 July 2001
Article by Michael Fletcher

To many people, making a Will has overtones of mortality and imminent demise. Documents which begin, in heavy black Gothic lettering: "LAST Will and Testament" tend not to lift the gloom. Not until it has actually proved to be the last, however, should you consider a Will to be your final word on the subject. Making Wills is a sensible habit people should adopt early in their careers and they should review with their solicitors, at regular intervals probably not exceeding five years, whether their Wills continue to reflect their wishes and whether any new legislation may need to be considered.

The advantages of dying with a Will, rather than without one, are probably clear enough (though even that can’t be relied upon - the solicitor author of a once leading textbook on Wills managed to die intestate). Rarely, however, does the first Will prove also to be the last - we at Lee Bolton & Lee cannot readily call to mind the last occasion upon which a client left our offices having made their first Will and Testament, only to be knocked down by a bus in the street outside. Most are likely to live for many more years, regularly remaking their Wills - and we are here to ensure that they may do so with the utmost ease, efficiency and confidence.

Many people assume that when you make a Will, you ensure that your express wishes relating to the disposition of your estate will be carried out. This is not, in fact, necessarily the case. As the law stands at present, a will can be rewritten by your executors and beneficiaries within two years of the date of your death. The normal reason for taking such a step is to save Inheritance Tax resulting from your (or sometimes your spouse's) death. In this way, it is possible to ensure, in a family context, that the benefit of the nil rate band (the tax-free portion of the estate, assets above which level being taxed at 40% unless given to a tax-exempt beneficiary such as a spouse or a charity) is not lost, thus saving, at current rates, over £96,000 in Inheritance Tax. However good an idea you may think this is, you may also wish to ensure, by wording your Will appropriately, that it should not be rewritten in any way.

In recent years, the option to re-write Wills after death has come under threatened review by both political parties and the wise testator should not assume that it will necessarily be available for his executors to use in his own case. In any case, there are other ways of achieving a similar result. One such is to dispose of the nil rate band on what are called discretionary trusts, which leave the executors of the Will to allocate the nil rate band among potential beneficiaries, most commonly the spouse, children and grandchildren of the testator. The decision on who should benefit from the nil rate band is taken by the executors within two years of your death, depending on the financial circumstances of your spouse and family at the time.

Even if you have recently checked that your Will is still in accordance with your wishes, there are certain events which should cause you to look at it again. Couples deciding to live together, married or otherwise; the death of any beneficiary under your Will; an increase in the size of your estate, possibly from inheritance, are all examples. An existing Will is revoked by marriage (unless it is made specifically in contemplation of marriage to a named spouse), while divorce revokes any part of a Will which would have benefited a former spouse. Unmarried couples without children need special advice in relation to their Wills, in order to avoid windfall benefits to undeserving relations of either party, should the couple die together. Furthermore, some final provision should be made for a fair distribution of their joint goods on the ultimate death of the survivor of the couple. Where children under the age of eighteen are part of the family, consideration should be given to the appointment of guardians. In these and many other contexts, specialist advice from a solicitor who deals with them on a day-to-day basis is highly advisable. Potentially disastrous consequences may ensue if a Will is made without proper consideration and guidance - the only winners in that situation are likely to be lawyers who have to unpick the mess. Certain organisations claim to provide "Wills by return of post"; just as a plumber benefits from the activities of the DIY central heating enthusiast, so lawyers are likely to benefit from those who try to arrange their affairs without the benefit of proper advice.

The desired consequence of making a Will is its probate. In other words, the point at which it is proved as a valid Will by the executor or executors (the people charged with putting its provisions into effect) named in it. Probate has acquired a bad name and many are the tales of long years of waiting for an estate to be administered. As with the making of a Will, it is important that probate should be entrusted to solicitors dealing with such matters on a regular basis. It should be possible, with the exception of the most complicated cases, to complete the initial assessment of the value of an estate and to prepare the probate documentation within two months of the date of death - and to obtain the Grant of Probate in a further month. The assets in the estate can then be realised or distributed and the beneficiaries satisfied. within a further few months. The usual causes of any delay are more often to do with issues such as selling houses which form part of an estate, but the Byzantine arrangements surrounding such legendary (happily fictional) cases as Jamdyce v. Jaindyce have long since become a thing of the past.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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