Thinking about when we die, and what happens afterwards, is understandably never high on our to do lists and that’s why so many of us put off making a Will.
In fact, figures show that only around a third of us have a made a Will and of these Wills a number were probably prepared a long time ago meaning they are very likely to be out of date.
Dying intestate – having no Will– means your wealth is divided equally among your closest relatives and not necessarily in line with your wishes. Equally an old, out of date, Will may not represent your current wishes. Both situations can cause a great deal of upset and even disputes on your death.
We have been reminded again of the importance to Respect (!) the importance of Will making following news in the US that rather than dying intestate, singer Aretha Franklin left handwritten notes setting out her plans for her millions, which last night were determined to be a valid Will.
When the intensely private Queen of Soul died aged 76 in August 2018, it was believed she had left no professionally drawn up Will for her estate meaning her assets – including homes, cars, furs and jewellery worth over £6M – were to be equally split among her four sons.
However, relatives claimed that they have found handwritten Wills in a locked cabinet and under the sofa that seem to set out her wishes when she died. The dispute between her sons about those documents culminated in a US court case, where a Jury was asked to determine the validity of those Wills and which of the two was the more recent. After only an hour’s debate, the Jury decided last night that the handwritten note found in her sofa was her valid Will, resolving five years of costly and emotional litigation and resulting in a redistribution of her wealth among her wider family. You would have thought that an important document like a Will would not have been stored by Aretha down the back of her sofa! However, that does not impact its validity, and shows the importance of a thorough search of an individual’s house on death to check for any Will hidden amongst papers or otherwise.
So how can you avoid upset, or a dispute after your death?
If a valid Will is not in place, the intestacy rules dictate what happens to your estate when you die. While these rules attempt to ensure a balanced distribution of wealth between a person’s closest surviving relatives, experience often tells a different story. This strict allocation of assets, in line with the rules, can cause upset, distress and disputes between those left behind, as the division of an estate in this way is arbitrary and takes no account of the deceased’s person’s wishes. Similar can happen if you leave a Will prepared many years ago that does not represent your current wishes, or if you make a later Will without validly revoking, or destroying, any earlier versions – in that scenario, your family could end up like the Franklin family arguing over which was your latest and valid Will.
Along with the obvious benefit of recording your wishes as to how your assets are to be divided on your death, there are other benefits to having an up-to-date Will. These include allowing you to appoint guardians for your children, choosing individuals you trust to deal with your affairs and the ability to set up trusts of your assets, if appropriate.
Is my Will valid?
There are certain formalities which have to be complied with in order for a Will to be recognised as a legal document.
You can of course make your own Will, but for it to be binding it would need to be signed by two independent witnesses and you must make sure it validly revokes any earlier wills to avoid later disputes. Speaking to a legal adviser to ensure you’ve taken the necessary steps, and considered all the possibilities, is always advisable.
Thrings wills and will disputes lawyers are experts in this area. For more information about Wills or Will disputes contact Partner Emily Prout, Head of Inheritance Disputes at Thrings, eprout@thrings.com
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