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Making A Will

An estimated 70% of us die without having made a Will. This means that on death our property will not necessarily pass to the people we have chosen. Instead where there is no Will our assets pass in accordance with the Intestacy Rules. Therefore, on our death our assets will not necessarily pass to the people we would have chosen our next of kin will inherit, whether or not they are our dearest as well as our nearest. More distant relatives, friends or charities may be closer to our hearts but, will be unable to benefit under the Intestacy Rules. There are a number of reasons why people should make a Will, as follows:

  • A Will allows the Testator/Testatrix to determine how his/her estate is distributed on death;
  • A Will enables the person to make more complex provision for his/her family and dependents (for example, by way of a trust) than that offered under the Intestacy Rules;
  • There may also be considerable tax advantages to be gained from a carefully drafted Will, particularly where tax planning is considered in conjunction with lifetime planning. The larger the estate, the more likely it is that this will be a significant issue;
  • A Will also allows the Testator/Testatrix to appoint who he/she wishes to appoint as Executors & Trustees, whereas on intestacy the choice of administrator is governed by the Non-Contentious Probate Rules 1987;
  • A Will may also incorporate additional powers to facilitate the administration of the estate. This is of particular relevance where, for example, the estate comprises a business which needs to be managed or sold during the administration period and clearly such powers can ultimately be a great benefit to the residuary beneficiaries of the estate;
  • A Will may also include the appointment of a guardian for the Testator’s/Testatrix’s children, which will be an important factor for clients with young children;
  • In addition, where parties are not married and are cohabiting it is important to make a Wills as the Intestacy Rules make no provision for long term cohabitees either in mixed or same sex relationships;
  • It is also important to be aware that marriage/civil partnership revokes a Will, unless your Will has been made in anticipation of your marriage/civil partnership;
  • Also, in respect of a Decree of Divorce or Nullity the Law Reform and Succession Act 1995 (LR(S) A 1995) provides that any gift to a former spouse passes as if the former spouse had died on the date of divorce or annulment and any provisions appointing the spouse as executor/trustee or guardian take effect as if the former spouse had died on this date – unless there is an intention to the contrary contained in the Will.

We recommend that you review your Will every 3 to 5 years to include any changes in your financial, marital or emotional circumstances. In addition, if there is a significant change in circumstances, for example, one of the main beneficiaries of your Will has predeceased it would be sensible to make revisions to your current testamentary arrangements. In this regard, we can on your behalf either draw up a new Will or add/exclude clauses in your existing Will through a codicil. Although, drawing up a new Will is more advisable and may be no more expensive. If you draw up a new Will it is advisable to arrange for your previous Will to be destroyed to avoid confusion in the future.

If you do not have a Will and have concerns in respect of any of the matters detailed above then please do not hesitate to contact any member of Barrett and Thomson’s Private Client Department namely: Alan Collard (Head of the Private Client Department), James Gladwell or Mahreen Paswal who will be able to assist you further.

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