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Following the death of a loved one, legal battles and family disputes can arise over the divisions of estates and personal possessions. These can be costly and emotional for those involved but are preventable.
The recently reported Spafford case demonstrates why leaving clear instructions in a Will is so important. After her mother’s death, Judith Anderson fell out with her brothers Tim and John Ward over the ownership of a suitcase containing old family photographs. Judith claims the trio had agreed that the last surviving sibling would inherit the suitcase. However, Tim Ward’s widow, who is now in possession of the photographs, denies this agreement.
Without a clear instruction in the Will detailing the mother’s wishes, the family are now locked in a lengthy and public court battle. When it comes to your Will, the devil really is in the detail. Whether its photographs or property, personal items of any value should be accounted for.
Leaving a specific gift in a Will
Should you wish to leave a certain item to a specific individual, you may choose to leave a gift in your Will. When leaving a specific gift, it’s important to provide a clear and detailed definition of the item(s), as well as the recipient(s) to avoid confusion. We also recommend that you avoid using general words such as furniture, contents or valuables that could be misinterpreted.
It should be noted that while adding a specific gift clause can provide clarity, it does have its drawbacks. Should the gifted item be sold or given away while the testator is still alive, then the gift will fail. This may be less problematic if the gift has been given to the intended recipient while the testator is still alive, but if the gift has been sold and replaced with something similar, the clause becomes void. If circumstances around the item change at any point, it’s important to update the will as soon as possible.
Keeping your will a secret after you die
Something to bear in mind, is that a Will becomes a public document once probate has been granted and therefore the details will be freely available. Unfortunately, detailing specific gifts within a Will is the only way to ensure it is legally enforceable. However, if this is something you want to keep private, you may consider leaving a letter of wishes.
A letter of wishes is a separate document that will be read alongside your Will by your
executor or trustee. While this is not a legally binding, the executors and trustees must consider it when deciding how to deal with the estate. A letter of wishes will also remain private.
Be mindful of Inheritance Tax (IHT) when writing a Will
When writing a Will, you should be mindful of who will need to pay
Inheritance Tax (IHT). In most cases, the costs the inheritance tax will need to be paid before the Grant of Probate is issued by the court. If the deceased’s assets are tied up in property, the executors may have to obtain a loan to pay the inheritance tax and then repay the loan at a later date. The executors/administrator is responsible for the payment of all estate debts before distributing the estate to the beneficiaries.
For furthe advice on making a Will, get in touch with
Tracey Ledgister-Forbes