Legal
Who will be the judge of that?
Mr and Mrs Rawlings made mirror wills in 1999 leaving everything to one another. She died first, and seven years later, after he died, it was discovered that she had signed his will, and he had signed hers. Thanks to these mirror mistakes, Mr Rawlings' will was invalid.
This kind of error is admittedly rare. But invalid wills are not uncommon, felled by various causes:
- not or incorrectly signed
- not or incorrectly witnessed
- forgery - usually of the will (or codicil) itself or the witness or testator signature
- fraudulent
- testator was subject to undue influence
- testator not of sound mind
- not an original
- confusingly worded.
- contains holes, additions, cross-outs or other suspicious marks
- conflicts with other will(s)
Wills of elderly and ailing individuals are most susceptible to challenge. For more information, see mental capacity, oldies and cases.
In the Rawlings case, the husband and wife intended, in their wills, to leave their estate to their "adopted" son ("adopted" is in quotes because he lived as part of the Rawlings family but had not actually been formally, legally adopted), not their two natural children. The ensuing dispute ended up in court.
Mr. Smith wanted to take his money with him after he died. As he lay dying, he asked his clergyman, his doctor and his lawyer to help him achieve that goal.
"At my funeral, put this money in my coffin,” he said, giving each of them £30,000 in cash.
When the sad day arrived, each placed an envelope inside the coffin.
Later the clergyman confessed: "The church needs a new roof, so I put £20,000 in the coffin and kept £10,000 for roof repairs. Brother Smith would have approved.”
The physician admitted: "I used £20,000 to buy a medical scanner to save future patients. Smith would have wanted that."
The lawyer said, "I’m ashamed of both of you. My envelope contained my personal cheque for the full £30,000."
Challenges from dependants
Royal Courts of Justice (aka the Law Courts), The Strand, London, where many disputed wills end up.
Some people may have a claim on your estate even though you expressly exclude them - or left them a legacy that they regard as insufficient. Usually, such claims are made by an ex-wife or ex-husband or current or ex-live-in lover who argues that they are entitled to "reasonable provision." Occasionally a more distant relative makes such a claim.
Actor Dirk Bogarde left most of his estate to his nephew, and gave a modest allowance - a lump sum of £20,000 plus £2,000 per year - to his sister Elizabeth. However, Sir Dirk had given her a £500 monthly allowance (£6,000 per year) while he was alive.
By the terms of his will, Sir Dirk's death would leave her poorer by £4,000 per year. She accepted an out-of-court settlement which restored her original allowance.
Inheritance (Provision for Family and Dependants) Act 1975
People who may make a valid claim on the estate are the deceased's
- surviving spouse or civil partner (or former spouse/civil partner who has not remarried/in new civil partnership)
- child or person treated by the deceased as a child of his family
- cohabitee (category introduced for deaths on or after 1 January 1996) - A person will be in this category of claimant if, during the whole of the two-year period preceding the deceased’s death, they lived in the same household as the deceased and as the husband or wife of the deceased, or
- any other person who was being wholly or partly maintained by the deceased immediately before their death.
Claims should be made within six months of the date of grant of representation, but the court may allow a later application.
Children - Watch Your Step
In wills and intestacy, the children of the deceased include adopted and illegitimate children. Stepchildren are not automatically included, and if the testator wants them to benefit, they should be named in the will.
"While Brooke Astor discussed possible changes to her will with her lawyer in a room in her Park Avenue duplex on Dec. 1, 2003, her son, Anthony D. Marshall, and daughter-in-law, Charlene Marshall, stood outside with their ears to the wall, one of Mrs. Astor’s nurses testified on Thursday." New York Times, 9 July 2009
Residue
Don't let the suggestion of "leftovers" mislead you into thinking that the residue is trivial. The residue of an estate can be huge.
The residue is that which remains after payment or distribution of expenses (such as funeral costs and other administrative costs, and debts), inheritance tax, specific gifts, and financial (pecuniary) legacies.
Mirror and Mutual Wills
Mirror wills are different from mutual wills - and the differences are important.
Mirror wills are usually used by spouses: husband Harry leaves x, y and z to his wife Wilma, and Wilma leaves x, y and z to Harry. But Harry and Wilma are each free to change the will in the future. Neither of them needs the other's consent to make a new will.
The main characteristic of a mutual will is a binding contract between the two parties such that neither can change it without the other's consent. The terms of the will do not have to be reciprocal (that is, they do not have to mirror each other). Most solicitors recommend that people do not make mutual wills.
Cancelling or revoking a will
To cancel your will, do not simply write 'cancelled' or 'revoked' or 'null and void' or any other similar word or phrase across it. Do not even inscribe a big X across the page.
The best way to cancel a will is to destroy it and make an entirely new one. To be on the safe side, make the new one first, and then destroy the old one. If you destroy your old will without having made the new one, you have no will at all. If you die before making a new will, you will die intestate.
Good things can happen to bad wills...
Wills can be changed after death. Via a 'deed of variation' a will that is not tax efficient can be posthumously rewritten after the death of the testator to save on tax. But all of the beneficiaries have to agree to the revision. A beneficiary who will lose from the change can veto the entire exercise.
Legal assistance is a necessity. Various people have to be notified, and there is a two-year time limit after the death of the testator, so the sooner this procedure is initiated, the better.
A deed of variation can work wonders but not miracles; certain kinds of trusts can not be changed by a deed of variation, for example.
...and even better things can happen where there is no will at all
A posthumous will can be drawn up to avoid intestacy. As with deeds of variation, though, many people need to agree, and it all has to be done fairly soon after the death. Professional financial and legal advice is a must.
Powers of Attorney: Lasting, Enduring, Confusing
Lasting Powers of Attorney (LPA) have replaced Enduring Powers of Attorney (EPA), although current EPAs are still valid.
LPAs are legal documents enabling a mentally competent person 18 or over to appoint one or more people to make decisions on their behalf.
LPAs come in two flavours:
- property and affairs - for decisions about property, bank accounts, stocks and shares and the like.
- personal welfare - for decisions concerning health and personal welfare, including residential arrangements, day-to-day care and medical treatment.
LPAs must be signed and witnessed, and also registered with the Office of the Public Guardian (OPG). The OPG website (publicguardian.gov.uk) has downloadable forms as well as information. It also has advice and information for people who are inquiring on behalf of others.
Signing Your Will and Having it Witnessed
Can a witness be a beneficiary? Can a beneficiary be an executor? Can an executor be a witness?
Does it matter who witnesses your will? How many witnesses are required?
Many a good will has gone bad - been deemed invalid - because something went awry when the will was signed.
It is easy to get confused. For more information, see Witnesses.
