Updating Will

Willman_Rodders

Hi all,

I might be too late to come in on this thread (I only found the site three days ago when it turned up on a Google search that helped me with a problem I had at the time; since then I have responded to a number of posts.)

As a professional willdrafter, [and former qualified financial adviser] there are a couple of points I'd like to clarify. The comments raised previously are valid; I will just add further pointers.

Wills that are 30 or more years old often lack the clauses that have been refined over the years. The old wills will still be valid but the protection and administrative clauses, common in today's modern wills, designed to protect executors, property, children etc will not be included.

Codicils are still valid. However with most will drafters generating the wills by computer we always recommend that the whole will be rewritten. This is not because we can charge more but ....
Codicils tend to get lost;
they are open to fraud;
the cost savings when compared to a simple will is small when created by professional will writer. You can create your own codicil but ... [see next paragraph about writing your own will]

Writing your own will is really not recommended. Again you can still do so, and if you do it correctly you will save yourself money. However, the slightest confusion within the will and your family will be deciding what a clause meant in the law courts; very expensive. It is reported that Solicitors earn more money from settling disputed wills than they do from drafting them.
Your will is an important document; saving money now is often a short term gain, and a longterm headache for those people left behind to sort out the mess.

Using a book from the library will give you three or four example administrative clauses. But a simple will should have about 20 of these clauses. A complex will [that includes discretionary trusts] will have more. When you take into consideration the time it will take you to read the book, understand its contents, type out your will perfectly and then bind it together (Using a staple to hold two sheets together may invalidate your will) you soon realise that a professionally drafted will is a bargain.

It is quite common in professionally drafted wills to allow a testator (i.e. the person making a will) to create an 'expression of wish' to distribute personal chattels. So you can scibble out a note giving little Johnny your favourite clock on your death, and then two weeks later when little Johnny has called you some obscene name make another expression of wish giving the clock to his cousin little Peter. But your will needs to authorise the existence of this document. Also the wording of the document needs to refer back to the will. But these expressions of wish deal only with personal chattels i.e. personal belonging. Cash/money is not a personal chattel.

The original post (as refined) pointed out there were stepchildren involved, and a 2nd marriage. Far greater care is required in these circumstances. Section 33 Wills Act 1837 (as amended) defines what happens if a child dies, and sets out if their children inherit by substitution. Again this has been changed in recent years; the old system used to allow the inheritance to go to the spouse of a deceased child i.e. You die, your estate would go to your adult child but if your adult child had predeceased you but was married at the time of his/her death the surviving spouse would inherit; now it is kept within the bloodline. Your will may need to state that section 33 does not apply. Stepchildren are specifically excluded, unless the will defines otherwise.

How much should a will cost? This, from my perspective, is the annoying part. Prices vary wildly, and so does the level of advice you receive. And the two are not directly linked. Solicitors are not necessarily the best will drafters; most solicitors draft wills occassionally and [all too often] it shows. national will writing firms who offer home visits are expensive. But there are will writers out there who do a good job, for a fraction of the price of others.
We charge £60 for a simple will, and this includes a home visit. If you have inheritance tax planning the price is more. Trade bodies -e.g. the Society of Will Writers - maintain list of members, and these members should have professional indemnity insurance.

Willman_Rodders

After sending my last post I found a comment from 'moonrakerz'. I was not sure whether he/she had found an error in an earlier reply and so I will clarify. The post read ....

You do not need to revoke a will because a will does this automatically.

This is not correct. A new will does not automatically revoke an earlier will, and can create [immense] problems when this clause is omitted.

I often deal with clients who have properties abroad. In some countries the law requires them to make a will specifically for their property; if we included the standard revocation clause we would immediatly invalidate the 'foreign' will. In these cases you need to set out what countries or country your will covers and then revoke all former wills relating to that area.

moonrakerz

Willman_Rodders wrote: »

You do not need to revoke a will because a will does this automatically.

This is not correct.

Correct! My mistake.

I think that reinforces my point about getting a Will written by a professional !

margaretclare

Willman_Rodders wrote: »

The original post (as refined) pointed out there were stepchildren involved, and a 2nd marriage. Far greater care is required in these circumstances. Section 33 Wills Act 1837 (as amended) defines what happens if a child dies, and sets out if their children inherit by substitution. Again this has been changed in recent years; the old system used to allow the inheritance to go to the spouse of a deceased child i.e. You die, your estate would go to your adult child but if your adult child had predeceased you but was married at the time of his/her death the surviving spouse would inherit; now it is kept within the bloodline. Your will may need to state that section 33 does not apply. Stepchildren are specifically excluded, unless the will defines otherwise.

I'm in that position as highlighted. Our younger daughter died, was married at the time of her death, no children, so in the circumstances you describe her widower could inherit from me. I'm in a second marriage. My surviving daughter and DH's son and daughter have no need of anything from us. Our wills are written so that the 5 grandchildren share equally whatever is left, whichever of us is the last to die. 3 of those grandchildren are mine, 2 of his - so in fact they're 'step' of each of us, if that makes sense.

Margaret

Lady_K

What normally happens then in this situation. When my stepmum dies she has left the house to be split between the 5 of us, her 1 natural son and 4 of us her late husbands natural children (my father). If I died before she does would that normally mean the 5th of the house I would have inherited would go to my 2 natural daughters? I do not have a husband I am divorced

Willman_Rodders

Hi Lady_K (and MargaretClaire)

In an earlier post I highlighted the rules regarding Section 33 of the Wills Act 1837 (as amended), and mentioned that unless the will states otherwise stepchildren are excluded from a class distribution e.g. a clause reading something like .... 'I give to all my children alive at my death.. ' would not include any stepchild.

To overcome these laws a stepchild needs to be specifically named in the will, or a 'definition of child' clause included into the will.

Returning to your (Lady_K) latest post and your specific enquiry and my interpretation of the law...

If you mum says her estate is to go equally to 'her children' in her will - as a class distribution, then her son will inherit everything - because you and your brothers and sisters [from your dad], are stepchildren to your mum (the testator).

If your mum states her estate is to go equally to Named person 1, Named person 2, Lady-K, Named person 4, and named person 5 then you will inherit a 20% share of your mother's estate on her death.

A further problem comes if you predecease your mum. I personally doubt that your children would inherit by substitution (in accordance with Section 33). My reason is that you are not a child, or other issue, of the testator (i.e.your stepmum) and section 33 only appears to cover blood relatives.

Further, I don't know the relationship now between your former husband (and natural son of your step-mother) but I could guess he may well argue that your 2 natural children are not entitled to anything. And he may win.

The solution is relatively simple. A clause naming the children and stepchildren, but with an overide that if any of the beneficiaries die before the testator they take in substitution - clarifies the position beyond question.

Incidentally, for you (did I read somewhere you were thinking of doing your own will) you may need to specifically exclude your former husband.

Just looking back to MargaretClare's post (and assuming I understand this correctly) MargaretClaire has three grandchildren (and two step-grandchildren). Her husband has two grandchildren (and three stepgrandchildren.)

Unless their wills are clear and concise there could be the game of 'Lottery of life'; this is an all-to-common game. Many families are playing it now, unknowingly. The game rules are simple ... the last-person-to-die's family wins at the exclusion of the others. i.e if MargaretClaire outlives her husband her natural grandchildren will inherit, at the expense of her step-grandchildren. If her husband outlives MargaretClaire then his natural grandchildren inherit at the expense of his stepchildren.

One aspect is certain; the husband of MargaretClaire's deceased daughter will not inherit.

The solution for MargaretClaire is relatively simple. A clause naming individually the grandchildren and stepgrandchildren clarifies the position beyond question.

Before I close this post there is one point that Lady_K made. That was the embarassement she felt discussing this topic with her mum. This is common. It is not easy talking to your loved ones about their death. Many people put off making a will (and thus leaving their families exposed to risk, and loss) because they dislike talking about death fullstop. This is where a professional will writer excels; apart from being able to explain the options to the person enquiring, we are distant to the person giving us their instructions - and a good will writer knows the techniques to make a person talk about their wishes on a matter of fact basis; the emotional element is removed. Making a will should not be an unpleasant experience, but rewarding and enjoyable.

margaretclare

Hi, and thanks for the clarification. We must have been aware of all this at the time that we wrote our wills - it was when we did equity release in 2003, when we put the title into joint names and it was after my younger daughter's death. I wasn't aware that there had been a possibility of her widower inheriting under my will - he's doing all right without it anyway, as are all that generation, my daughter, stepson and stepdaughter too.

All the grandchildren and step-grandchildren are specifically named in our wills. When they moved house I've written to the solicitor giving their new addresses, and the full names of all 5 of them have been in there from the start.

Margaret

Errata

The point is that step children or step parents have no legal relation one to the other. This can cause difficulties if an elderly step parent who has a close relationship with a step child goes into hospital. I had the devil's own job getting hospital staff to discuss my step dad's illness with me as I wasn't legally related to him and we couldn't get his permission as he was incapable of giving it. Patient confidentiality blah blah blah.

LauDauns

Thanks~~!
This is great. This must be a lot of work.


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margaretclare

Errata wrote: »

The point is that step children or step parents have no legal relation one to the other. This can cause difficulties if an elderly step parent who has a close relationship with a step child goes into hospital. I had the devil's own job getting hospital staff to discuss my step dad's illness with me as I wasn't legally related to him and we couldn't get his permission as he was incapable of giving it. Patient confidentiality blah blah blah.

They are not related by blood, but they ARE related by the bond of marriage.

Margaret