There’s no escaping the fact that the idea of writing a will can be difficult for some. Doing something that forces you to face your own mortality can be a challenge, and many of those who have taken the step will be relieved to just put the matter to the back of their minds and leave it for their loved ones to deal with when they finally depart. If only it were that simple.
In a recent post made on social media by former Eastenders star Tamzin Outhwaite, the actress highlighted the fact that Wills are not something that can be drawn-up and then forgotten about.
In her message, Outhwaite shared that the Will left by her mother, who died suddenly of an aneurism in 2018, didn’t genuinely reflect her mother’s wishes at the time of her death, and that if it had, she and her children would have received a greater share of the estate. She offered a stark warning to all that updating a Will is critical, especially where there is property or children involved. Otherwise, hard-earned assets could well end up in the wrong hands.
What could go wrong if you don’t update your Will?
When socialite Tara Palmer-Tomkinson died in 2017 at the age of 45 her Will, which was drafted 13 years prior, left her entire estate – worth £2.3 million at the time – to any children she may have had. However, since she never actually had children, the estate passed automatically to her siblings instead under the strict intestacy rules.
Though there’s undoubtedly a chance that Palmer-Tomkinson would have been happy for her estate to have been shared amongst her siblings, it’s also possible that she’d had other wishes, such as leaving specific items or amounts to friends or making a donation to charity. As such, by failing to revise her will to reflect the realities of her life, Palmer-Tomkinson created a situation where her wishes at the time of her death, no matter what they may have been, had no impact on the way her estate was divided.
This kind of situation is not uncommon. According to the UK Wills and Probate Market 2020: Consumer Research Report, published in January 2021, only 36% of the adult population of the UK have currently written a Will. Further statistics reveal that 18% of those adults will not have updated it in the past 5-10 years, and 15% will not have reviewed it for more than a decade.
Furthermore, 10% have undergone a divorce, marriage, civil partnership or remarriage without reflecting their lifestyle changes in their Will in over 10 years, and more than 65% of parents don’t have a valid legally binding record of their dying wishes.
All of which means that whilst the 36% who have written Wills have undoubtedly done the right thing, neglecting to review the document might cause even greater heartache for loved ones further down the line.
How does marriage or civil partnership impact a Will?
According to the Office for National Statistics (ONS), the number of couples cohabiting rather than marrying or entering into a civil partnership has risen from 15.3% to 18.4% in the last 10 years. If these couples, many of whom have children, are neglecting to write wills on the mistaken belief that there is such a thing as a common-law wife or husband who will inherit automatically, then they could be in for a very rude awakening if the worst happens. Namely, that if one of them dies, the other will be left legally entitled to inherit absolutely nothing by right.
Anyone who divorces, then remarries or enters into a civil partnership after writing a Will, needs to review it as a matter of urgency. What many people don’t realise is that a previous Will is automatically revoked and no longer applies upon remarriage or new civil partnership. This means that the estate will be divided in line with the laws of intestacy, the situation which would have applied if the will had never been written in the first place.
According to these laws, if the deceased was married with children – whether these children were the product of the first or second marriage – the surviving partner will receive the first £270,000 of the estate and all personal items, while the rest of the estate will be divided equally between the surviving spouse and the children. The children will all receive equal shares, with any under the age of 18 having the money held in trust for them.
When the complicated family scenarios created by second and third marriages or civil partnerships are considered, it’s clear that this could throw up a situation in which the family home is owned equally by the surviving spouse and the children of the deceased from a previous marriage, something which is likely to be a recipe for conflict.
The deceased may well have made provision for their children in the original Will, and presumed that this would still apply, with everything else being left to their spouse or civil partner at the time of death, but the rules of intestacy and the revocation of a will upon remarriage render this approach ineffective.
Even more complex and potentially painful is the situation in which a party has divorced or had a civil partnership dissolved and is then cohabiting with a new partner. Unless a new Will is written then the new partner will receive nothing when the party dies and may need to look to the courts to make a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975. The court will need to be convinced that the claimant did not have reasonable provision made for them by the deceased, with no guarantee of success and the stress and expense of a court case to cope with.
How often should you update your Will?
As a general rule, wills should be reviewed and updated every three to five years, and in the aftermath of certain life events such as a child or grandchild being born, a divorce, marriage, civil partnership, moving to a new home or purchasing a second home, if someone named as a beneficiary or executor in the will dies, or if there is a shift in the value of your assets.
One mistake which people sometimes make is to think that a promise made to a loved one will be honoured following their death, even if it is not mentioned in a Will. The principle of proprietary estoppel states that a promise can be legally binding without a written contract. However, convincing a court that this applies to an estate will mean persuading them that the promise was made, that it was relied upon, and that this reliance meant the individual in question suffered detriment.
In one of the more common scenarios, this will involve an individual working in a family business, eschewing the chance to get another job or access education, and doing so in the belief, based on promises made, that they will inherit the business when the current owner dies. The court will need to determine whether all of this is true and, if so, that it is unfair of the estate not to honour the promise made by the deceased. If, as the deceased, you were genuine in your wish to leave some part of your estate to the person to whom the promise was made, it’s clear that this is a terrible position to leave both the promisee and the rest of your family in.
How do you make changes to your Will?
Any minor change to a Will can be made simply by creating a codicil – a separate document written and witnessed in the same way as a Will – while most changes should be introduced through the creation of an entirely new Will. The actual body and content of the existing Will shouldn’t be altered at all, as this will leave it open to being contested. Once a new Will has been created the original Will is revoked.
Remember a Will sets out how your money, assets, and possessions will be distributed when you die and the critical thing is to not lose a grip on that control and leave what happens to fate.
If you need assistance on how to amend your Will to better reflect your current personal circumstances, our private client team is able to offer you expert advice and a listening ear, even when discussing such sensitive matters. Please get in touch if you want to discuss your requirements in greater depth.