Making a Will 

The Importance of Making Your Will

Quite apart from ensuring that your estate passes to persons whom you wish to benefit, there are a number of less obvious reasons for making a Will and we hope that reading these Notes will assist you in giving consideration to the contents of your own Will.

If you have not made a Will, there is the possible problem of the time, effect and delay that will be spent in endeavouring to ascertain whether you have made a Will and where it may have been deposited. This will involve enquiries of solicitors and banks and, of course, a search of your home, personal papers, etc. to discover whether a Will has been made. If you have not made a Will it may take quite some time to search for a document which does not exist!

The appointment of executors is important because you should choose some one who is able to act immediately if this proves necessary. If you do not make a Will, it is then necessary for the Court to appoint administrators and this might cause considerable delay, particularly if beneficiaries or potential beneficiaries are abroad on holiday or are still under age. There is also the technical point that an executor's authority arises from the moment of your death, whereas the authority of an administrator does not arise until a Grant of Letters of Administration is obtained; until that time this means that there is no one who can deal with any of the assets in your estate. Because of the possibility of executors dying before you, you should also consider whom you would like to be your contingent executors. (e.g. the partners of your firm of solicitors at the date of your death.)

If you die leaving children who are still under age, very considerable personal and financial problems can arise if your spouse also dies with you or shortly afterwards and there are no guardians appointed in your Will.  In such circumstances, it may be necessary to make an application to the Court and, apart from the additional expense and delay, it may cause considerable problems if there is likely to be any dispute as to who is entitled to the guardianship of your children.  Further, the guardians should be given the necessary powers of finance in your Will to enable them to carry out the appointment.

If you are carrying on a business or, indeed, have any assets such as farm property which are not recognised as long term investments in law, it may be necessary to sell the business or assets which might otherwise be avoided if suitable provisions and powers are incorporated in your Will.

By means of your Will you may often achieve substantial inheritance tax mitigation on simple principles, although achieving those means may require careful drafting. 

For farmers and farm owners, substantial concessions are given on agricultural property and businesses. However, these concessions, if not properly used, may be reduced or lost altogether.

By making your Will you can avoid the intestacy provisions which will otherwise be applied by law and which may be entirely contrary to your wishes; in the absence of a Will, the law determines precisely how your estate is to be distributed  There is also the danger that, in the event of deaths in quick succession, your estate will be distributed entirely contrary to your wishes, had you applied your mind to the situation. For example, if a husband is killed in a car accident and his wife dies a day later in hospital, then the husband's estate will pass into the wife's estate and, if neither of them made a Will or the husband has made a Will in favour of his wife but not inserted a contingency clause, then the husband's estate will pass to the wife's estate and, in turn, the wife's estate will pass to her side of the family in the absence of children. Also, the intestacy provisions are not designed with tax considerations in mind.

Although the thought of making a Will is depressing to some people, the effect of not making one may be even more distressing for those whom you intend it to benefit, either by way of them having to pay more inheritance tax or by causing family disputes. You should also consider your wishes in the event of an intended beneficiary dying before you; although you could change your Will in that event, it is better to make provision for it in the first place in case you are too upset, ill or otherwise incapable of making a new Will.

If you are hesitant about the final details of your Will, it is suggested that you make a Will now to cover immediate contingencies and then review it at a later stage. This will involve very little extra trouble and cost because Wills are now drafted and stored on our computer and may be retrieved instantly; only amendments to the Will need to be typed again.