The Importance of Making a Will
Kathryn Harwood from Napthens, considers the importance of making a will to ensure the wishes of the deceased are followed in the event of a death
The Law Commission recently described the existing law surrounding wills as outdated which is not a surprise as the wills process is still largely based on the Wills Act 1837. The Law Commission has called for the rules to be more straightforward so that making a will is more accessible.
What happens if you die without making a will?
As a reported 40 per cent of people die without making a will, this is clearly a matter which needs addressing. If you die without leaving a will there are specific rules, known as the intestacy rules, which govern how your estate shall pass. These rules may not follow your wishes, for example unmarried partners cannot inherit from each other irrespective of how long they have been together, unless they have made a will. Even for those who are married, only the first £250,000 of assets passes to their husband or wife with the remaining assets being divided between the spouse and the children.
The Law Commission consultation
The Law Commission has recently consulted on various proposals including whether the court should be able to dispense with the formalities for a will where it is clear what the deceased wanted.
The Law Commission has investigated whether texts, e-mails or other forms of electronic communication might constitute a valid will in certain circumstances.While the law surrounding wills needs to be modernised to take account of the changes in society since the Victorian era, care needs to be taken to ensure the wishes of the deceased can be proven and carried out.
With increasing numbers of will disputes, while electronic wills might result in significant benefits in terms of convenience and accessibility, it is vital to ensure testators are protected against fraud and exploitation.
Under current rules, there are certain formalities which must be followed in order to ensure the validity of a will and non-compliance of these strict formalities renders a will void. Consequently, it is important to seek professional advice to ensure a will accurately reflects the wishes of the testator and is correctly executed. A solicitor can also check the testator satisfies the current test relating to capacity which strengthens the validity of the will should it be contested at a later date.
The consultation closed in November with an official report due later this year so it will be interesting to see how many, if any, of the proposals are introduced into current law. At the very least the consultation highlights the importance of ensuring a will is in place to ensure the wishes of a testator are followed in the event of death.
Kathryn Harwood is a partner and head of the wills and estate planning team based at our Preston office
7 Winckley Square, Preston PR1 3JD