With DIY Will templates on sale in newsagents and basic Will writing services available online, you might wonder whether you really need a solicitor.
Yet there’s no substitute for the knowledge, experience and one-to-one attention a solicitor provides, to ensure you really do have the Will you want. This true case illustrates why.
When June Clark died in 2016 she thought her Will would leave relatively small gifts to her two daughters – Ann and Lynn – with the rest of her estate benefitting others. However, after their mother’s death Ann and Lynn challenged her Will, claiming she had entered into an earlier mutual Will (which would benefit them more) that could not be overridden.
The daughters argued that the Wills made by their parents in 2000 were mutual Wills, so when their father died in 2001, their mother was unable to change her Will, making her 13 later attempts inconsequential.
A mutual Will exists when a Will is executed by at least two individuals and they agree to not create another without the other’s consent. When one party dies, the other cannot change their Will.
When the case went to court, the judge held that Ann and Lynn’s parents had indeed entered into mutual Wills, so the later 13 Wills made by June, including the last which she thought would be effective on her death, could be disregarded.
The case shows why it’s essential your Will is valid on your death, and why you should have proper legal advice when you make it.
What were the options?
When June and her husband made their respective Wills in 2000, there were other options they could have considered:
1. Outright gift to survivor on the first death
They could have each given all their estate (i.e. everything they owned immediately before their death) to the other. This would require setting up Wills that mirrored each other, so no matter which of them died first the same people would benefit. The effect would have been very similar to mutual Wills, with the key difference being that the surviving spouse would have been free to change their Will at a later date.
Yet even this might have had unintended consequences. If the surviving spouse had remarried or changed their Will, the deceased spouse’s assets may not have been distributed as they intended.
Some people may feel they trust what their spouse will do when they die, but others may want more certainty.
2. Gift into trust on the first of their deaths
June and her husband could have made Wills stipulating the estate of whoever died first would pass into a trust. The surviving spouse would then have a right to the income the trust produced and have been able to live in the house until their death, but the capital would have been protected for the children or whoever the deceased spouse wished to benefit.
Make sure your intentions are honoured
What’s right for you and who you want to benefit on your death is your decision. But to make sure that decision is put into practice, you need a properly structured Will.