The Importance of Making a Will

It is amazing how many people spend a good deal of their lives building assets and wealth, yet do not have a will. By not leaving a will, your assets may not be disposed of according to your wishes after you are gone. Whilst statistics in this area are a little unreliable, it is estimated that up to half of all persons who die each year, do so without having made a will.

If a person dies without leaving a will, then they die intestate. This can cause stress and financial hardship for those loved ones left behind. If there are no beneficiaries provided for by the law of intestacy, then the government receives an unexpected windfall because this is how the laws of intestacy can operate in certain circumstances. Making a will is often a simple and inexpensive task. There are certain formalities which the law requires you, as the testator, to observe. Most of these formalities, especially those rules governing the witnessing of wills, are designed to ensure that the will is not made fraudulently or in circumstances where the testator is under duress to make it in a certain way. And while there are a number of ‘do it yourself’ will kits around, they are often as expensive as asking a solicitor to prepare a will for you.

Except in cases where your assets are minimal, it is recommended that you have a solicitor draw up your will. This normally involves only a small fee but it gives you peace of mind knowing that your will has been drawn up properly. There are numerous instances where after the death of the testator, beneficiaries have argued in court the technical validity or otherwise of a will because of drafting or procedural irregularities. This can be very expensive and is often paid for out of the assets of the estate. In some cases it is entirely unnecessary due to the fact that the technical deficiency could have been avoided if a lawyer had prepared the will in the first place.

In making a will, you must make sure that:

• all legal formalities are satisfied, the language that you use is clear and unambiguous
• all assets are properly dealt with as well as the payment of testamentary expenses
• there is provision for some other person to inherit your assets if your preferred beneficiary named in the will predeceases you
  
• infant children named as beneficiaries in the will are properly cared for
• assets are properly administered if the beneficiaries are still under age and unable to inherit under the will until they reach majority

One aspect of making a will that is often not understood is that a will can be revoked or cancelled. It is quite common for a husband and wife to make what are commonly called ‘mirror wills’ in the belief that because they make the wills at the same time, their respective wills cannot be changed without the consent of their spouse. For example, a husband and wife may make a will leaving the whole of their estate, after payment of all testamentary expenses, to the children of their marriage. However, unless a certain procedure is adopted, there is no reason why either the husband or the wife cannot subsequently change their will and leave the whole of their estate to some other person — for example a child of a previous marriage or even a total stranger.

There is no legal obligation for the existence of the new will to be disclosed to the other spouse. Unfortunately, this occurs not irregularly and can be avoided if the solicitor is instructed to prepare a mutual will contract at the same time that the wills for the husband and wife are prepared. This mutual will contract ensures that any subsequent change to the will is a breach of contract and operates to invalidate any subsequent will unless both the husband and the wife first agree and vary the terms of the mutual will contract. There are also many tax pitfalls which need to be considered when making a will. Whilst there are no death duties, there are capital gains tax rules that will impose tax on the subsequent disposal of certain assets by beneficiaries pursuant to a will. Some commentators describe it as a secret death duty because capital gains tax can be triggered by the death of a person. If substantial assets are involved, careful consideration needs to be given at the time the will is being drawn up so that future tax obligations are properly planned for.