Simple or complicated, what’s your Will type?

Photo of a man carrying children through a field

Search online for ‘simple’, ‘free’ or ‘cheap’ will writing and you’ll be presented with a range of website results including sponsored adverts promising that you can sort everything in five minutes flat.

In theory, you could scribble who you want to leave your earthly goods to on any scrap of paper and sign it. Then, as long as your signature is witnessed and signed by two independent adults aged 18 or over, it might be legally binding. But does that mean it’s a good idea?

One step up from that are the DIY kits you can buy from stationery shops and online that allow you to write your own Last Will and Testament.

In the digital age, many people have high expectations of doing things at the click of a button. As a result, online will writing services have become popular, especially since the start of the pandemic. These online services range from quick and basic online templates to more detailed customer journeys where you will be asked questions to find out more about your personal circumstances and finally options where you can speak to an advisor through a phone or online call.

Rebecca Head, of Four Oaks Legal Services, said: “In general, you should only consider writing your own will if your situation and wishes are very simple. The difficulty is that a lot of people think their circumstances are simple, when in fact there may be complications they have overlooked.

“With property prices rising, many people have more wealth to leave than they might expect and a properly drafted Will can avoid disputes after your death.

“Since the pandemic began, there has been a surge in people wanting to sort Wills quickly for minimal costs and online options can look tempting.”

When should you NOT consider a DIY online Will?

Circumstances that make a will more complicated, so that a DIY online option would NOT be recommended include:

  • If you have people who are financially dependent on you, other than your immediate family, such as children from previous relationships.
  • If you own a property abroad or have overseas investments or bank accounts.
  • If you own a business.
  • If you have wishes that are slightly complicated or open to misinterpretation.
  • If you want to try to reduce the Inheritance Tax obligations of your loved ones.

Rebecca said: “There are growing fears that many Wills that have been made with online software or DIY kits in recent years will actually be invalid when they come to be enacted, or will result in costly and stressful legal battles for families.

“In the worst cases, Wills may not do what the client intended and it may be the courts who decide who should inherit land, property and belongings.

“Many websites and will writing software have clauses that strictly limit, or deny, their liability if anything should go wrong, so you may have no legal comeback at all.”

The clear difference that puts clients first

Solicitors at Four Oaks are all legally qualified and experienced and Rebecca and her colleague Adam Penn also hold Diplomas in Trusts and Estates from STEP (the Society of Trust and Estate Practitioners). This is the gold standard qualification in the industry.

Rebecca added: “Experience tells us what questions to ask to really understand the situations of our clients and to advise them if their instructions are likely to result in heartache for loved ones in later years.”

A recent survey by independent research and consultancy firm Funeral Solution Expert found that 65% of UK consumers who believe their affairs are simple, actually have much more complex needs when it comes to their Will.

Rebecca added: “We recognize that some traditional law firms may have driven people towards online will writing services and DIY options because of complicated fee structures, slow response times and the hassle of getting an appointment. At Four Oaks Legal Services, we set out from the start to be clearly different. We are upfront about our fees and we are happy to arrange appointments outside normal office hours and to take instructions in the homes of our clients if it is difficult for them to get to us.”

Where there’s a will, there may be a dispute

Last-Will-and-Testament-image-by-Melinda-Gimpel-on-Unsplash.

We’re seeing a steep increase in the numbers of people challenging Wills across the UK.

This is backed up by a survey claiming that one in four people said they would challenge a Will if they were unhappy with the provisions it made.

Many Will disputes involve adult children who have been cut out of Wills or left less than they expected.

Why are more Wills being contested than ever before?

Well, firstly a lot of people are wealthier. This is often due to big rises in property values. This means there is more at stake, so people are motivated to take action.

Secondly, family trees are more complicated than they once were with numerous branches formed by divorces, remarriages, step-siblings and cohabitees. When someone dies without leaving a Will there are strict rules that dictate what happens to their Estate. For example, a live-in partner could lose their shared home and receive nothing.

Thirdly, publicity in the media has made more people aware that it is possible to contest a Will.

Fourthly, people have been living longer. This means that more people have been making Wills when they are in poor health and this can prompt disappointed relatives to challenge a Will.

Finally, writing Wills remains an unregulated area. Wills prepared without an experienced solicitor’s input may contain mistakes or miss out vital steps or information. This makes them easier to challenge. The same is true of DIY and online Wills that people draw up themselves.

What are the grounds for challenging a Will?

A Will can be legally challenged if there is a question mark over the mental capacity of the person at the time they made the Will. There is also a possibility of a challenge if there is proof that the person was under pressure to write what they did.

It can also be challenged, in some circumstances, if no provision was made for a dependent in need.

Technical errors in the paperwork can also lead to legal claims.

But as Rebecca Head, a director and Wills & Probate solicitor at Four Oaks Legal Services said: “A Will cannot be challenged JUST because relatives and friends think that it’s unfair or because siblings or other beneficiaries have not been left equal amounts of money or possessions of a similar value.

“Something called ‘testamentary freedom’ is always given priority. This means that we can leave what we want to who we want in our Wills.”

Rebecca is a STEP Practitioner, the top professional qualification for a Wills, Trusts and Probate solicitor.

She added: “A parent with two adult children may choose to leave more in their Will to one than the other for a variety of reasons. Perhaps, one child received more financial support than the other when the parent was alive, or one of them did more to help their parent than the other.”

How to avoid a Will being challenged

The main way to avoid a Will being challenged is to have it drawn up by a solicitor experienced in family and estate planning.

We would advise anyone to think carefully before launching a court challenge. Losing the case could result in the challenger being ordered to pay the legal costs of both sides, which can run into hundreds of thousands of pounds.

If a Will dispute goes to court, there will need to be robust evidence in order for it to be overturned. Evidence from a qualified solicitor, who took appropriate and thorough notes and obtained all the necessary information, is a major way to prove the validity of a Will.

A Will that has been professionally prepared is rarely declared invalid.

Rebecca recommends that parents talk to their children about their Will and the reasons behind the bequests they have made.

Rebecca said: “We understand that it can be a difficult conversation, and it’s understandable that they may want to avoid it, but they could be sparing their loved ones a nasty shock further down the line.”

Another piece of advice is to make a list of your personal possessions and state who you want to have them. It makes your wishes clear and can avoid emotionally-draining arguments.

If you still feel a Will is unjust, take advice from a solicitor with experience of handling contentious Wills. They will understand the highly-charged feeling you are experiencing and can give you independent and sound advice.

How to choose who writes your Will

Choosing a STEP member can be an advantage as they will have been trained to the highest level and have relevant experience.

Just because a Will writer is a member of the Society of Will Writers or the Institute of Professional Will Writers, does not mean they have the same expertise as a Solicitor or a STEP-practitioner, who will have the letters TEP (standing for Trust and Estate Practitioner) after their name.

Using an experienced solicitor will ensure there is more background information available to a judge in the event that a case does go to court. It may also deter people from challenging the will, because they will see that the solicitor took all the steps to prove that their client had capacity, understood the bequests and provisions they were making and was not under undue influence.

If you want help or advice from us, contact details for all our team are here.

 

Can I get a copy of a deceased’s Will?

A question that our probate team often get asked is “Can we get a copy of a Will after a person has died?”.

Can I get a copy of a Will?
Can I get a copy of a Will?

If an estate requires a Grant of Probate then the deceased’s original Will is submitted to the Probate Registry and is retained there.  The Will then becomes a public document and anyone, upon payment of a small fee, can apply for a copy of it.

You can find out if a Grant of Probate has been obtained, and order a copy of a Will, by using the Gov.UK search tool here:-

https://probatesearch.service.gov.uk/#wills

If an estate does not require a Grant of Probate, the Will remains a private document and only the Executors of the estate can then agree to release a copy.

 

 

 

Why Making a Will is Tough for Parents of Children with Disabilities

Statistically speaking, some 60% of the population haven’t made a Will. Of the 40% that have, around 20% of those need to review those provisions. Scary, isn’t it?

For parents with children who have disabilities, there are no specific statistics on how many of them haven’t made a will but in my 14 years’ experience as a wills Solicitor, I would guess it it will be an even higher percentage than 60%.

Over the years, I’ve given numerous talks on behalf of Mencap and other organisations, such as schools and charities, who support the parents of children with disabilities. I’ve talked about the issues which surround making a will when you have a child with disabilities and I’ve made many wills for parents in this situation, ranging from children with very mild to moderate disabilities to those who have very severe disabilities. In talking to many of these parents over the years, I’ve gained an insight into why many don’t act to make wills. In order to help other parents who may be in a similar situation, I thought I’d share those reasons with you, together with my responses.

Top Reason – the Ostrich Approach

No-one likes to think of a time when they won’t be here for their children but for parents of children with disabilities, this can be even harder to think about. For most of us, when our children are adults in the eyes of the law, they can take care of themselves and whilst we may not be around, they will manage. For those parents of children with disabilities, especially those with severe disabilities, it can be a real worry to think about who will care for your child as they may never be in a position to care for themselves. This tends to mean that parents just don’t think about it as it’s too upsetting for them to do so. They take the ostrich approach of sticking their head in the sand and no planning gets done.

Answer: Whether you make plans or you don’t, the inevitable will happen. It is surely better to have a will in place setting out your plans for your child, so that you can rest easy in the knowledge you’ve taken care of everything that you possibly can for them.

Second Reason – my child doesn’t understand the value of money

We all want to pass on our hard-earned money to our children and give them as much of a head start as possible but, when you have a child with a disability, it may not be as simple as that. If your child does not understand the value of money, this can be a huge problem as it may not be appropriate to leave them a large inheritance that they will not be able to manage. They may have no, or limited, skills to manage the funds or they may use it inappropriately.  There is also the risk that they may become susceptible to third parties who may want to relieve them of your hard earned money.

Answer: Trusts can be used to help provide for children who cannot manage funds themselves.

Third reason – my child will lose their benefits, there’s no point me giving them anything

Some children with disabilities may be reliant in the long term on means tested benefits. Therefore if they inherit money, they will have to declare this to the DWP and they may then lose those benefits. Many parents feel that they are giving with one hand and the DWP are then taking it away with the other hand. Some parents, therefore choose not to do anything as they can’t see the point in leaving anything to their child in this situation.

Answer: Certain types of trust can be used to help provide for children who are in receipt of means tested benefits. The funds are owned by the trust and not the child, so their benefits are not affected, even though the trust funds can be used for the child.

Fourth reason – I just don’t know where to start thinking about this

Many parents of children with disabilities feel overwhelmed at the thought of making a will because they don’t know where to start or how they will resolve the issues in making appropriate provision for their child. So instead of seeking advice, they do nothing.

Answer: a good friend once said to me “You don’t know what you don’t know”, which is some of the best advice I’ve ever been given. How can you expect to make decisions about your child’s future if you don’t know what the law allows you to do and what options are open to you. Of course, you will feel confused and unsure. If my car makes a strange noise, I don’t lift the car bonnet and look at it thinking “How can I fix this? I don’t know how to do it!”. I call the local garage and have experts look at it and tell me what my options are. It’s really the same with making a will. Have a chat about your situation with someone who specialises in preparing wills for families like yours and they will give you the options that are open to you. Once you know the options, it’s generally very easy to make a decision.

If you are a parent of a child with a disability, or you know someone who is, and you haven’t made a will, I can help. I offer an initial no obligation, no charge meeting to discuss your situation and to advise you about the options available to you, to help you make decisions so that you can begin the journey to properly protect your child and family.

Rebecca Head of Four Oaks Legal Services
Rebecca Head of Four Oaks Legal Services

 

Rebecca Head is a Solicitor and Director of Four Oaks Legal Services and can be contacted on 01543 440 308.