Making a will

[wiggydiggy]

You can only ever have one Will. When you execute a new one, the old one is revoked. That is the reason it is called a Last Will and Testament.

I was only really interested from a 'do I need to keep it' POV, I've been dealing with the actual Last Will for the last 6 months. We've only just been granted probate, things seem to be taking an age right now.

 

[SpokeyDokey]

Well, the law is contradictory. The Inheritance (Provision for Family and Dependants) Act 2005 says that children (or indeed, anyone you've regularly been supporting financially) has a right to inherit some of your estate, but it also says that it is fair that the inheritance received can be nothing. You can put anything you want in a Will.

If you exclude somebody from a Will, they normally appoint a solicitor who will send what is called a "Larke v Nugus letter" to whoever wrote their Will. I get them occasionally. I have to pull someone's case notes up and send them along with the Will to explain why the Will is the way it is. I've never had a Will challenged, because my notes protect the beneficiaries chosen by the testator. The letter explaining the situation is a common first line of defence as writing the reasons someone isn't to inherit in a Will would be considered "scandalous" which could lead to the part of the Will where someone was excluded being removed from the Will before probate is granted.

Slightly confused by your answer there.

What do you mean by "scandalus" please? And what is the implication of that?

Also are you saying that a letter stating the reason for non-inclusion isn't worthwhile?

 

[chris667]

I was only really interested from a 'do I need to keep it' POV, I've been dealing with the actual Last Will for the last 6 months. We've only just been granted probate, things seem to be taking an age right now.

If you've been granted probate on a Will and no caveats have been lodged, there is no reason to keep older Wills. If there was an issue with the last Will that meant it couldn't gain probate, it might have been important.

Oh, as to your other question - if a beneficiary predeceases a testator then the gift might fail, or it might follow the family per stirpes. Depends on the gift and circumstances. A rewrite or at least a check is always worthwhile.

What do you mean by "scandalus" please? And what is the implication of that?

Also are you saying that a letter stating the reason for non-inclusion isn't worthwhile?

I know nothing about your circumstances so nothing I say here constitutes advice.

You need to understand that after someone dies a Will becomes a public document. Let's talk about the implications of this to a theoretical testator named Bob.

Bob has a son who he hasn't seen for many years after a disagreement (he loaned his son a huge amount of money to buy a house and instead of buying one rented a house and spent the money on flashy road bikes and cocaine). He writes a Will excluding his son, but if he included the actual reasons the son isn't inheriting then the reasons would be considered scandalous (as they would become public knowledge) and redacted from the Will prior to probate. What you would have then is a Will that excludes the son without saying why. This leaves the estate vulnerable to a claim claim under the Inheritance (Provision for Family and Dependants) Act 2005.

Best practice would be to include a clause along the lines of "X is excluded from my Will for the reasons stated in a letter written by me and stored with this my Will". This would be saved and read out at a court case if the court decided to claim. Scandal avoided, as the letter is still private after your death - if you choose to go to court you lose your right to privacy.

You can't stop claiming, but solicitors follow the money and the letter along with properly made case notes would make the chances of a successful claim very difficult indeed. If the solicitor doesn't think they will be able to earn their fees, they won't do the work.

There's even the possibility of vexatious claims, where there's little chance of winning and someone is taken to court just to cause nuisance. There's not much you can do to prevent this but that's extremely rare, because who would pay for it?

I'm certainly not commenting on the service you received one way or the other. It is a judgment call for a draftsman to make a decision as to whether that sort of clause is appropriate to a given set of circumstances. You really have to put your faith in the competence of the person who drafted your Will. It also means that if they haven't done their jobs properly you can fall back on their professional indemnity insurance.

Did I say it's immensely stupid to rely on a homemade Will?

 

[SpokeyDokey]

If you've been granted probate on a Will and no caveats have been lodged, there is no reason to keep older Wills. If there was an issue with the last Will that meant it couldn't gain probate, it might have been important.

Oh, as to your other question - if a beneficiary predeceases a testator then the gift might fail, or it might follow the family per stirpes. Depends on the gift and circumstances. A rewrite or at least a check is always worthwhile.

I know nothing about your circumstances so nothing I say here constitutes advice.

You need to understand that after someone dies a Will becomes a public document. Let's talk about the implications of this to a theoretical testator named Bob.

Bob has a son who he hasn't seen for many years after a disagreement (he loaned his son a huge amount of money to buy a house and instead of buying one rented a house and spent the money on flashy road bikes and cocaine). He writes a Will excluding his son, but if he included the actual reasons the son isn't inheriting then the reasons would be considered scandalous (as they would become public knowledge) and redacted from the Will prior to probate. What you would have then is a Will that excludes the son without saying why. This leaves the estate vulnerable to a claim claim under the Inheritance (Provision for Family and Dependants) Act 2005.

Best practice would be to include a clause along the lines of "X is excluded from my Will for the reasons stated in a letter written by me and stored with this my Will". This would be saved and read out at a court case if the court decided to claim. Scandal avoided, as the letter is still private after your death - if you choose to go to court you lose your right to privacy.

You can't stop claiming, but solicitors follow the money and the letter along with properly made case notes would make the chances of a successful claim very difficult indeed. If the solicitor doesn't think they will be able to earn their fees, they won't do the work.

There's even the possibility of vexatious claims, where there's little chance of winning and someone is taken to court just to cause nuisance. There's not much you can do to prevent this but that's extremely rare, because who would pay for it?

I'm certainly not commenting on the service you received one way or the other. It is a judgment call for a draftsman to make a decision as to whether that sort of clause is appropriate to a given set of circumstances. You really have to put your faith in the competence of the person who drafted your Will. It also means that if they haven't done their jobs properly you can fall back on their professional indemnity insurance.

Did I say it's immensely stupid to rely on a homemade Will?

Thanks for the answer.

Our Wills refer to leaving someone out and we have letters stored with the Wills + associated evidence.

So I guess that is the bases covered as best we can - glad to hear that successful contesting would be very difficult.

 

[Pale Rider]

So I guess that is the bases covered as best we can

I reckon you have.

If you wanted to add a belt to those braces, you could give copies of the will and the letter of exclusion to your 'civil' executors if you have any.

Maybe I spent too long in courts, but I have limited faith in the legal profession, and would not want to rely solely on a solicitor in cases such as yours.

 

[presta]

Of interest to those deliberately excluding offspring from a Will.

Ilot vs Mitson:

https://www.harrison-drury.com/home...what-are-my-options-if-im-left-out-of-a-will/

I wonder if that's still the same for more distant relatives. The nearest of mine are one ~95 year old uncle, and some cousins, only two of which I know well, there are some I think I've only seen once, and there may even be one or two I've never seen. There have never been any bequests coming this way from aunts or uncles, but I've had snipes about my father leaving everything to me on and off since he died. (He did say he wanted something to go to my mum and one other, but he left me to do that, which I did, so nobody will know unless they told someone.)

In terms of preventing a challenge, a good idea would be to include a letter of exclusion with the will.

This would list who you don't want to inherit and why.

In cases such as yours, the problem with just making a will is that it routinely only lists who is going to inherit.

By adding a letter of exclusion it will make it very difficult, next to impossible, for those named in the letter to mount a challenge.

What concerns me is if a separate letter goes "missing".

Bob has a son who he hasn't seen for many years after a disagreement (he loaned his son a huge amount of money to buy a house and instead of buying one rented a house and spent the money on flashy road bikes and cocaine). He writes a Will excluding his son, but if he included the actual reasons the son isn't inheriting then the reasons would be considered scandalous (as they would become public knowledge) and redacted from the Will prior to probate. What you would have then is a Will that excludes the son without saying why. This leaves the estate vulnerable to a claim claim under the Inheritance (Provision for Family and Dependants) Act 2005.

Best practice would be to include a clause along the lines of "X is excluded from my Will for the reasons stated in a letter written by me and stored with this my Will". This would be saved and read out at a court case if the court decided to claim. Scandal avoided, as the letter is still private after your death - if you choose to go to court you lose your right to privacy.

Would I be right in thinking that including the exclusion reasons in the main will is fine if there are no scandals to hide?

 

[Pale Rider]

What concerns me is if a separate letter goes "missing".

The letter of exclusion is on a separate piece of paper stored with the will, so if one is found, so is the other.

As mentioned, if you are really concerned about things going deliberately missing, you should give copies of the letter/will combo to a couple of trusted 'civil' executors, as well as a reputable solicitor.

 

[chris667]

Would I be right in thinking that including the exclusion reasons in the main will is fine if there are no scandals to hide?

Parkers (generally considered one of the standard reference books used by Will Draftsmen) suggests a clause along the lines of "No provision is made for xx because of a large number of lifetime gifts" as generally acceptable, but in my opinion it would be bad form.

Please remember though that you should not rely on what some random bloke said on the Internet. ALWAYS someone with proper skills and PI insurance to draft a Will for you if you want to exclude someone.

 

[ebikeerwidnes]

Parkers (generally considered one of the standard reference books used by Will Draftsmen) suggests a clause along the lines of "No provision is made for xx because of a large number of lifetime gifts" as generally acceptable, but in my opinion it would be bad form.

Please remember though that you should not rely on what some random bloke said on the Internet. ALWAYS someone with proper skills and PI insurance to draft a Will for you if you want to exclude someone.

How would insurance work
I mean - I pay for the will so the client is me
but I am dead - be definition - so who claims against the insurance if a mistake has been made and the will is found to be invalid??

 

[presta]

so who claims against the insurance if a mistake has been made and the will is found to be invalid??

The losing parties among the potential beneficiaries contesting the will presumably. If you'd been left a million quid and you lost it because someone made a hash of writing the will, you'd likely want to claim against the will writer.

 

[Profpointy]

The losing parties among the potential beneficiaries contesting the will presumably. If you'd been left a million quid and you lost it because someone made a hash of writing the will, you'd likely want to claim against the will writer.

Mmm, that's all very well, but if someone contests the will sucessfully, doesn't that mean it was determined that they are legally entitled to what the got, so suing the will writer on the basis the will should really have said something different might be a stetch.

 

[ebikeerwidnes]

Mmm, that's all very well, but if someone contests the will sucessfully, doesn't that mean it was determined that they are legally entitled to what the got, so suing the will writer on the basis the will should really have said something different might be a stetch.

So - if the will has already been wound up and the money distributed - then does the executor have to make up the difference
or does the person who got the money have to give it back

and would the passage of a significant amount of time make a difference (for example - if the 'problem' was spotted at the time is that different to if the problem is spotted some time (possibly years???) later

 

[presta]

Mmm, that's all very well, but if someone contests the will sucessfully, doesn't that mean it was determined that they are legally entitled to what the got, so suing the will writer on the basis the will should really have said something different might be a stetch.

The sort of scenario I'm thinking of is one where it's very plain what the deceased wanted, but the will get's rejected because of some sort of technical error made by the writer. (It was clear that my mother's will wasn't what she wanted, but in that case it was her own fault for not getting her scribbled alterations signed by two witnesses.)

and would the passage of a significant amount of time make a difference (for example - if the 'problem' was spotted at the time is that different to if the problem is spotted some time (possibly years???) later

I imagine there's likely to be a statute of limitations operative at some point or other. For debts in general it's 6 years IIRC.

 

[PK99]

Wills are also revoked if you divorce.

Online sources say that is not so.

Many people assume that getting divorced cancels out any Will they made during their marriage. This isn’t the case, and failing to update your Will following divorce could have serious consequences for your estate.
https://www.irwinmitchell.com/personal/wills-trusts-estates/wills/guide/divorce#revoked

 

[chris667]

Online sources say that is not so.

And in this instance they're correct. The correct answer is... it depends.

Practically, the correct provision needs to be worked out on a case by case basis. People who have had joint finances have responsibilities to each other in some circumstances even if they believe they shouldn't. There are too many variables to discuss here so I am not commenting further other than to say you need the advice of someone with proper legal training.

I'm bowing out of this thread, there's too much speculation from people who merely think they're correct but are actually making statements they think are facts. All I will say is I have written Wills for people who bought yachts by fixing the mistakes of amateur lawyers.

As the percentage of the value of your house, a Will is bugger all. If you begrudge a professional a couple of hundred quid to do something so important, you're probably an idiot.