UK: Ask Yourself This: I Died Last Night. Is My Will Correct?

This article was first published by The Times on 14 January 2003.

A recent High Court case has illustrated the importance of making a will — and getting it right. Ralph Colin-Smith died two years ago at the age of 95, leaving his home and most of its contents to a friend, Susan Minns. Another friend, Venetia Foster, urged the judge to uphold a will made only seven months earlier, in which she was left a larger portion of the estate. The judge rejected claims by Mrs Foster that Mr Colin-Smith lacked "testamentary capacity" when he changed his will, and upheld the final will.

This case shows how important it is for wills lawyers dealing with an aged client to be alert to the issue of mental capacity and to consider consulting a psycho-geriatrician to avert any legal challenge.

It is not only elderly people who must ensure that adequate plans are in place for their death. The increasing complexity of modern family structures has made willplanning more important than ever. Second marriages abound and estates are often larger than one might expect, largely because of house price inflation. Even so, many people do not have adequate wills.

Jokes still abound along the lines "where there's a will there's a lawsuit", but in my experience, home-made wills produce the biggest windfalls for the legal profession, usually by reason of ambiguity or incorrect witnessing. You should ask yourself this question: I died last night — is my will correct? Wills should be reviewed at least every five years between the ages of 35 and 65. Assets, dependants (older and younger) or spouses, may change significantly between those years. Failure to review may mean that a will fails to reflect current wishes.

In the case of children under the age of 18, guardians must be appointed on the unexpected death of both parents. If the guardians are from a lesser "wealth bracket" (a relative term) they might justifiably be recompensed for the costs of moving home to accommodate the children. The income of the joint estates needs to be available for the children, but the guardians should be allowed a "gratitude" legacy.

The Inheritance (Provision for Family and Dependants) Act 1975 exists for the support of disappointed potential beneficiaries. Best advice must always be to anticipate whether someone might be justifiably disappointed and to deal with the problem.

The claimant does not have to be a spouse or dependent child — the law has kept pace with changes in society and cohabitees of not less than two years' standing may make claim if they have not received "reasonable financial provision". In such circumstances, all the financial details have to be disclosed to the court, including pensions, life insurance and other assets.

For many people, the distribution of wealth is extremely sensitive and there may be valid reasons why a person might wish to divide his or her wealth unequally among his or her children. In this situation, a person may wish to keep certain aspects of a will confidential, but a will is a public document once probate has been granted, available to anyone; the will of Diana, Princess of Wales, became a bestseller. However, it is possible to hide the devolution of wealth from prying eyes by using the little-known procedure of semi-secret trusts. The legacy goes direct to the trustees of a pre-existing trust, the details of which are not public.

The issue of inheritance tax is, of course, at the top of most people's agenda when it comes to will planning. A good solicitor will advise on minimising tax — and inheritance tax on property can be spread over nine-and-a-half years (with interest running after the first instalment). If the heirs cannot afford to retain or maintain a property, that is not the fault of what is actually a relatively benign capital tax system.

For the increasing number of people whose affairs are complicated by more than one marriage, by dependants, or even by a large lottery win, it is essential that there should be a rapport with an experienced wills practitioner who understands the interrelationship of families, business life, taxation and the unexceptional rivalry of siblings. If you do not know such a paragon, phone a reliable and trustworthy friend for a good recommendation. Yellow Pages in this instance is not the answer.

So, is your will still correct?