Do not leave it too Late to draft your Will

Many people completely neglect to draft a will and do not give any thought to what will eventually happen to their estate once they are no longer here.  English law principle of testamentary freedom, in that individuals generally remain free to leave their estates as they choose.  However, the 1975 Act provides a limited statutory exception where a will fails to make reasonable financial provision.  

If there is no will the laws of succession are applied.  In some cases the laws of succession may be completely acceptable.  Unfortunately, in other cases disputes within the family or the desire to advantage a friend or organisation outside the family cannot be accommodated through succession law and a will must be drafted outlining the testator’s wishes.  Disputes arise due to allegations of coercion, particularly when the deceased is elderly.

There are many factors that a testator frequently does not consider or is unaware that they should consider, in order that their estate is distributed in the way that they wish it to be, without attracting complications or high tax bills for the beneficiaries.  They should be aware of the role of Executor.  

• Executors are appointed to undertake the fiduciary duty (administering the estate in accordance with the Administration of Estates Act 1925, The Trustee Act 2000 and the Inheritance Act 1984 and the terms of the Will.   under the law in England and Wales)  They must:

  • Locate the testor’s valid Will
  • Register the death
  • Arrange the funeral
  • Safeguard the testor’s estate
  • Identity all the estate’s assets and liabilities 
  • Value the estate
  • Pay taxes due against the estate disputes
  • Apply for probate if necessary

Executors are personally liable if they fail to pay taxes and debts before distributing the estate.  Their other responsibilities should be undertaken with the advice of a legal professional to avoid inadvertent mismanagement of the estate such as failing to treat all the beneficiaries fairly leading to conflicts of interest and prolonged disputes, which in turn may conclude in Court attracting considerable legal expenses that reduces the estate.  

Having expert legal advice and being guided by an inheritance lawyer is far the best way of avoiding conflicts and tax issues for your beneficiaries.  This does not mean that the testator cannot leave their estate to whom and in the way that they wish to.  However, sudden last minute changes to a will by a testator, particularly when they are in later life, that removes the expected beneficiaries such as the testators next of kin can be viewed as controversial and potentially subject to coercion by a third party.

In today’s society with divorce and second families, as well as the fact that some individuals choose not to marry but live together.  An individual may wish to consider whether their unmarried partner’s children from a previous marriage or relationship should be advantaged with a legacy.  Setting up a Trust can help in many aspects of inheritance and assist in preventing costly disputes.

Dispute arise due to many different circumstances such as:

• The failure to update and amend a Will when there are changes in the circumstance within the family – second marriages and new relationships being the main change of circumstances.
• Falling out with close family members, such as children, which remains unresolved at the time of death.
• One of the principle reasons for challenging the validity of a Will is the suggestion of undue influence by a third party, often accompanied with the suggestion that the deceased lacked the mental capacity to understand the changes.
• Wills which include the business interests of the deceased can frequently be problematic, particularly if the other directors/partners who are unrelated object.

Wills hand written themselves by the testator are often subject to dispute, particularly if the completely override the terms of a previous will.  The high profile dispute over Aretha Franklin’s hand written will found after her death under her sofa, triggered a lengthy legal battle.  The document was signed with a smiley face drawn inside the letter A followed by her surname.  The Court accepted the Will and her estate was distributed in accordance with the terms of the Will. 

Giambrone and Partners can assist with drafting a Will in accordance with England and Wales as well as cross-border wills relating to an estate in Italy. Our lawyers can advise on all aspects of inheritance law.