Taking care of the next generation

by
18 October 2019

Can wills heal or irreparably wound families? Rebecca Paveley looks at pitfalls to avoid

WillAid

A solicitor discussing making a will

A solicitor discussing making a will

THE number of wills disputed and fought over in the High Court has soared in recent years: it is up by more than 60 per cent since 2016.

The reasons for the increasing litigiousness of friends and relatives are at least threefold, solicitors say: the home-made “do-it-yourself” will kits, which can be bought cheaply over the internet; the fact that the average estate is now much larger, owing to decades of rising house prices; and the complexities of the modern family.

High-profile cases of contested wills also generate a great deal of media coverage and encourage other disappointed relatives to try their hand. A survey this year found that millions of people would be prepared to contest a will if they thought that it was unfair.

Trying to “future-proof” a will is something that solicitors have to do, although, however good they are, it may not prevent an aggrieved relative’s putting in a claim.

The head of private practice at Tallents Solicitors, Mansfield, in Nottinghamshire, Sarah Allen, says: “As a solicitor, the last thing we want to do is write a will that is going to be challenged. We ensure our clients are fully aware of any potential claims, though that doesn’t have to mean they can’t do what they want to do. People have the right to benefit those they want.”

Stephen Coates, a partner at Taylor Bracewell, in Doncaster, says: “One thing we do as best practice, if someone is making a will that is likely to be contentious and disputed, is to insist that our client write a separate letter explaining their reasons; so, if it goes to court, their reasons for excluding someone can be understood.”

This does not prevent a claim, but it does help the court — and the person who has been left out of the will — understand the reasoning behind the decisions.

Part of the “future-proofing” that solicitors undertake is encouraging clients to think ahead — and to return to update their will if their situation changes. Many people are not aware, for example, that marrying for a second time, or a divorce, revokes a will.

“One of the key things we try to do is to make sure nobody is excluded who shouldn’t be. If someone wants to leave £10,000 for a grandson, we’d ask whether there are more grandchildren. We have a case at the moment where money had been left to a grandchild, but all the other grandchildren born since the will was written were excluded,” Mr Coates says.

“Quite often, too, people will make a will when relatively young, and leave everything to their children, and then never get round to changing their will yet they’ve since had more children.”

 

MOST solicitors advise clients to think about updating their will every five years — although most of us don’t — but, as an absolute minimum, big life events such as births, marriages, divorces, and death require a visit to the solicitor.

Recent court battles over wills include the case of Melita Jackson, who left her £500,000 estate to the RSPCA rather than to her estranged daughter, Heather Ilott. Mrs Ilott made an application under the Inheritance (Provision for Family and Dependants) Act 1975 for “reasonable financial provision” from her mother’s estate, and eventually won £50,000, although the case dragged on through the courts for more than a decade.

The majority of wills are straightforward, and tend to reflect the relationships that people have had in life. So a close family will leave money within the family, while those who are not close to their family are most likely to consider leaving money to charities. Some clients have no idea which charities to leave their money to, and want to ask for suggestions from their solicitor, which they are not able to give. Charities are increasingly prepared to fight to keep legacies, as the case of Ms Ilott shows.

Solicitors do occasionally have to persuade their clients not to act in a deliberately antagonistic way, which is likely to lead to challenges and disputes.

“The majority of families are amicable, though people are concerned about how they can protect their assets from a threat, whether that is care fees, or divorce, or children. But if and when things go wrong in families, it tends to be spectacular, and it can be irreparable,” Mr Coates says.

“I’ve never come across someone who has repented and tried to make up with someone through a will; people’s wills tend to reflect the relationships they had before they died.

“But, on the other hand, it is also rare for someone to exclude spitefully. People who are being left out of a will generally expect it,” he says.

A former solicitor, turned priest, and now Archdeacon of Exeter, the Ven. Nick Shutt, agrees. “My advice to clients was to say, ‘If you really want to do that, we can do that,’ though I’d encourage people not to be deliberately hurtful. I did have one client who wanted to leave his daughter 30 pieces of silver — but he was in Dartmoor Prison at the time.”

His most frequent advice to clients was to advise them not to try to “rule from the grave” and dictate what happened after their death. Trying to do so led to distrust and heartache, and often failed, “as the unexpected often happens”, he says.

Since he was ordained, he has also been involved pastorally at the other end of the will-writing process: supporting families through disputes over wills and inheritance.

“I have had to try and support families after wills become public and disputes break out. It can cause huge upset in families when people have expectations that aren’t fulfilled. Pastorally, it can be very difficult, and clergy often have to pick up the pieces.”

 

AS MUCH as wills can sow discord, they can also bring unexpected joy, though solicitors agree that those who try to heal past wrongs through wills are few and far between. But there are those who leave unexpected gifts and legacies to people who have supported or served them well, in sometimes a very minor capacity.

“One of the most satisfying parts of the job is when someone leaves a sum of money to someone who had supported them in life, but they had no idea,” Mr Coates says.

Ms Allen agrees: “Clients have left money to people who have been good to them, to their cleaners or their hairdressers. It’s lovely for people to be appreciated, and often a complete surprise.”

She has also known clients who, despite poor family relations, were determined to share their estate equally. “I’ve had clients who have poor relations in the family but still want to treat people in exactly the same way. If there are sad situations, such as grandparents’ not having contact with children, they may choose to leave money to the grandchildren; so it stays in the family that way.”

Sometimes, generosity can be a little misplaced: some clients want to give away more assets and money than they actually own.

Archdeacon Shutt says: “I have seen people do some very generous things, and leave remarkable amounts of money to churches or to friends who have helped them over many years.

“People can do wonderful things, but also strange things. . . I’ve seen people who have been very committed to a church family all their lives and who give all their money elsewhere to another charity, saying ‘The church has had my money all my life: I’m going to give it someone else.’”

When deciding how much to leave and to whom, solicitors also advise not leaving fixed sums to individuals. When a will is paid out, fixed sums, known as “pecuniary gifts”, are paid out first, and if an estate is smaller than expected — perhaps because of substantial care fees towards the end of life — there can be little left in the pot for those inheriting the rest of the estate.

“People who leave large legacies need to understand they can depreciate through time, through care bills or whatever. Pecuniary legacies get out first, and residuary legatees get what is left. We’d normally encourage people to consider leaving a percentage rather than a fixed sum,” Ms Allen says.

Particularly in Will Aid month, which falls in November, the work is very varied, and can be demanding, both physically and emotionally.

Ms Allen specialises in working with elderly and vulnerable clients, and she can be called out to people on their death bed, or in care homes. She sees some of the best and the worst in human nature, she says.

“We deal with a lot of elderly and vulnerable clients, and we see families who are incredibly supportive and generous, and then those others where people are being taken advantage of. We see it all.”
 

November is Will Aid month, when solicitors write wills for free for a donation to charity.

willaid.org.uk

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