2018: New Year, New Will?

By Stewart Dunbar on January 3, 2018 in Blog

resolutionsWith the warmth of Christmas behind us and January now upon us, many of us will be setting aside the turkey sandwiches & mulled wine and thinking of resolutions for the year ahead.

As a private client lawyer, it is too easy for me to say “make a Will!” and leave it at that -though if you do not have a Will, then what better time to get it done? Instead, in the spirit of Yuletide reflection, I want to encourage those who already have a Will to go back and review their plans.  An old Will is not necessarily a bad Will, but life never stands still.  In certain situations, a neglected Will can sometimes be worse than no Will at all!  It is therefore essential that you take time to ensure that your Will keeps pace as you go through life.

There are a lot of things that can change over the years that would require you to take a fresh look at your Will.  For now, we will look at changes in (1) your family, and (2) your estate.

1. Families: hatches, matches & dispatches

If there have been changes in your family since you last did your Will, then you need to make sure your plans are up to date.  Here are just a few questions to ask yourself:

Have you had children since you made your Will? 

A lot of people make their first Will when they buy their first house.  Great idea, but if you later have children, then they may not be included in the Will.  Some Wills are ‘future-proofed’ with wording that covers children who are not yet born, but some Wills are not.  Scottish law has some surprising pit-falls in this area, so it is much better to review things afresh if you now have children of your own.  If your children are still under 16, you also need to consider the issue of who would be their guardian in the event if your death – which can be addressed within the Will.

Have your children gotten married or had children of their own?

A larger family means more people to consider.  Do you now want to leave some of your estate directly to your grandchildren?  Younger beneficiaries also bring other questions:  does their inheritance need to be placed into trust until they reach a certain age?  Do they have lifelong disabilities that will require special planning and consideration?  Do they need extra support to help them on their career path or to get onto the housing ladder?

Has anyone (including you) separated or gotten divorced?

If there has been a divorce or separation within your family, then you need to urgently review your plans in order to make sure that the person who has ‘exited’ your family is not accidentally left in the Will.  Recent changes in the law have made this point a little easier in some situations – namely where you are the one who has gotten divorced – but those changes do nothing if you have merely separated from your partner or if you were never married to begin with, and they do nothing where it is someone else in your family who has gotten divorced.  If you are not careful, your former partner or your former in-laws may still stand to inherit from you when you die.

Has anyone died?

If one of your beneficiaries has died, you need to consider what should happen to that person’s inheritance:  should it go to that person’s own children, or to other beneficiaries already named in the Will, or to someone else entirely?  The Will needs to provide the answer.  On a more technical level, it is also essential that you review who your executors are to be – as this is easily overlooked and can cause real problems where e.g. the only named executors have died or become mentally incapable.

2. Estates: through thick & thin

Fundamentally, your Will is all about managing and distributing your estate after your death.  So if your estate has changed, then your Will may also need to change.  A few more questions to ask:

Have you moved house?

If your Will leaves your house to someone, but you later move house, then that legacy may fail unless the Will is carefully worded so that the legacy covers the ‘new house’ as well.  Similarly, if you have sold your house without buying a replacement – perhaps if you have moved in with someone or if you have gone into sheltered housing – then the legacy may fail if there is simply ‘no house’ left to leave.  In those cases, you may wish to consider amending your Will to include a cash alternative, so that your beneficiary does not lose out entirely.

The same principle applies to all legacies involving specific assets or items.  If you do not own that asset any more, then you cannot give it away under your Will!

Are you more wealthy or less wealthy than before?

If your finances have significantly changed since you did your Will, you should take a fresh look at things.  You have been perfectly happy with a certain split between your beneficiaries when you did not have much money, but you may be less happy with it if you now have a house and savings.  You may want to adjust what share each person receives, or add new people or charities to the list.

If your estate has shrunk then you may decide to focus more on your ‘preferred’ beneficiaries, rather than slicing the pie too thinly among a large number of people.  If your Will contains legacies of large sums of money or assets, then it may even be that your estate can no longer afford to pay those legacies.

Have you started, joined or left a business?

Business-owners do not necessarily have to have more complicated Wills, but there is certainly more to consider:  there may the question as to what happens to the business after you die.  If it is a family business, then it is important for the Will to address the question of which member of the family is to inherit e.g. your shares in the company, and on what terms.  Slack planning can have disastrous consequences in this area!

On the other hand, if you have retired or sold your business, then you can probably afford to have a more straightforward Will, and to remove clauses about shareholdings etc.  Though of course you may then have a larger lump sum of cash to plan with, so the fun never stops!

The solicitors in the Private Client department of Blackadders are vastly experienced in dealing with Wills of all shapes and sizes.  Don’t let January beat you this time, get in touch to make an appointment with a solicitor at your nearest office.

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