Where there’s a Will, there’s a way

Insights - 11/11/2020

Olivia Burke, Solicitor in our Private Client department explains the importance of taking advice from a solicitor when making a will.

The Covid-19 pandemic has prompted many to prepare new wills to try to ensure that if the unthinkable happens, their estate passes in accordance with their wishes.

The principle of testamentary freedom applies to wills made in England and Wales, although it is subject to some exceptions. This means that it is generally possible to exclude individuals who may otherwise expect to benefit under a will.  However, individuals who find that they will not be receiving the inheritance they expected may, on the death of the testator, have grounds to bring a claim against the estate under the Inheritance (Provision for Family & Dependants) Act 1975 (“Inheritance Act”).

Many wills are made without the benefit of proper legal advice, leading to questions as to their validity and the estate potentially vulnerable to litigation from disgruntled relatives.  Where a testator intends to prepare a will leaving their estate in a way which may potentially lead to a claim, it is especially vital to seek specialist advice from a solicitor experienced in dealing with wills.  A solicitor will consider the family dynamics and proposed terms of the will and advise the testator about any potential Inheritance Act claims that may arise as a result of their wishes, as well as considering ways to help mitigate any claims including how the will may be drafted.

A solicitor will also keep a full note of the testator’s instructions setting out the background to any family dynamics and providing an explanation of the testator’s wishes (although this would not be disclosed without appropriate consent) and the advice provided. They will also record the testator’s mental capacity to make a will and a solicitor may recommend the testator undertake a capacity assessment that can be held on file in support of their proper instructions. The solicitor’s notes should be stored with the original will and in addition to assisting with any potential Inheritance Act claims, may also assist in dealing with other claims such as undue influence or capacity issues.

Our private client team are on hand not just to assist with the preparation of wills but also to provide associated advice as part of our service to help ensure the wishes of our clients are safeguarded.

If you have any queries based on the above please don’t hesitate to contact our team on 01737 854 500 or email [email protected]

Disclaimer:

Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position.