Keep your Will current or your loved ones may pay the price

A social media post by former Eastenders star Tamzin Outhwaite, made it clear recently just how much of a mistake it could be to not keep your Will up to date, after sharing an image of her recently purchased shepherd’s hut.

In the post, Outhwaite states: “I used the money left to me when my mum died, but mum didn’t have a current Will so her kids did not get what was meant for them….. Moral of the story? Get a current Will! It is important. Especially if you have property…and children. I know what my mum wanted. But you need it in a Will. If not your hard earned money and assets could end up in the wrong hands.”

No more details have been forthcoming, but what seems clear is that Outhwaite feels her mother’s  Will, didn’t genuinely reflect her mother’s wishes at the time of her sudden death from an aneurism in 2018. If it had Outhwaite implies, she and her siblings would have received more.

If you have taken the time to write a Will, you could be forgiven for believing that as far as your estate is concerned, you have ticked one major item off your to-do list.

However, a Will is a living document expressing your wishes, so your initial will is merely the first step in ensuring your estate is divided according to your wishes, at the time of death, and as your life changes so should your will.

Without a Will the intestacy rules apply

What many people don’t realise is that a previous Will is automatically revoked and no longer applies when a person remarries, for example.

This means the estate will be divided according to the laws of intestacy, which govern the division of estates if no Will exists. According to these laws, if the deceased was married with children, whether the product of the first or second marriage, the surviving spouse will receive the first £270,000 of the estate and all personal items except the family home if it is held jointly.

The rest of the estate will be divided equally between the surviving spouse and the children. The children will all receive equal shares, with any under the age of 18 having the money held in trust for them.

When more complicated family scenarios are created by second and third marriages are considered, it’s clear that this could throw up a situation in which the family home is owned equally by the surviving spouse and the children of the deceased from a previous marriage, something which is likely to be a recipe for conflict.

The deceased may have made provision for their children in the original Will and presumed this would still apply, with everything else being left to their spouse at the time of death, but the rules of intestacy and the revocation of a Will upon remarriage render this approach ineffective.

Similarly where a party has divorced and is then cohabiting with a new partner. Unless a new Will is written the new partner will receive nothing when the party dies, and may need to look to the courts and make a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975.

Should I update my Will regularly?

As a general rule, Wills should be reviewed and updated every five years, or sooner to reflect life events such as a child or grandchild being born, a divorce or remarriage (as explained above), moving to a new home or purchasing a second home, or if someone named as a beneficiary or executor in the Will dies and if there is a shift in the value of your assets.

One mistake people sometimes make, which may be the situation with the Outhwaite story, is to think that a promise made to a loved one will be honoured following their death, even if it is not mentioned in a Will.

While a promise can be legally binding without a written contract, convincing a court that this applies to an Estate will mean convincing them that the promise was made, that it was relied upon, and that this reliance meant the individual in question suffered detriment.

In one of the more common scenarios, this will involve an individual working in a family business, eschewing the chance to get another job or access education, and doing so in the belief, based on promises made, that they will inherit the business when the current owner dies.

The court will need to feel that all of this is true and that it is unfair of the Estate not to honour the promise made by the deceased. If, as the deceased, you were genuine in your wish to leave some part of your estate to the person to whom the promise was made, it’s clear that this is a terrible position in which to leave the individual made the promise and the rest of your family.

Minor changes to a Will can be made very easily by creating a codicil, which is a separate document written and witnessed in the same way as the Will. Significant changes should be made through the creation of a new Will and although it is possible to do it yourself, the advice of an experienced lawyer, well-versed in estate matters, will ensure no potentially costly mistakes are made.

The actual body and content of the existing Will should not be altered at all, as this could leave it open to being contested and once a new Will has been created all and any copies of the original one should be destroyed.

If you wish to write a new Will or update an existing one, then please get in touch with Alex Drake, a member of the of the Society of Trust and Estate Practitioners and Head of the Private Client Department, here at Taylor Walton. She is based in our St. Albans office and can be reached on 01727 845245 or by email alex.drake@taylorwalton.co.uk