CAVEAT EMPTOR

Everybody knows what that means, it means “buyer beware”.  Usually associated with dodgy washing machines and iffy cars.  As I am an expert on neither, I would like to concentrate on Wills.

I was advised many years ago that, if writing an article, I should try to use personal experience.  This has proved to be good advice, and I would like to attempt in this article to argue that not only is it very important that Wills are made, but that they are properly and professionally made, and that corners are not cut.  It is my view that a Will is simply the most important document that anyone will ever sign, and it is worth doing it properly.

In a recent case, Mr. & Mrs. A decided to make Wills, but rather than see a lawyer, they chose a bank’s postal service.  This involved completing a questionnaire and sending it through the post to a Bank Will Writing Service, who then prepared a Will on the basis of the questionnaire, and send it to Mr. & Mrs. A for execution.  The Wills were duly executed.  Mrs. A died and there was not a problem because her Will provided that everything should go to her husband if he survived her, which he did.  Subsequently Mr. A died.  His Will provided that everything should go to his wife if she survived him which she did not.  Unfortunately, the Will stopped there.  Part of the difficulty was that both Mr. & Mrs. A were married previously, and both had children from their previous marriage, but not by their marriage to one another.  As an inevitable consequence of the Wills, Mr. A’s children inherited his estate, and Mrs. A’s children were left out, even though undoubtedly Mr. A’s assets comprised his own assets and those of Mrs. A.  It is true that the bank pointed this out to Mr. & Mrs. A before the Wills were signed, but the advice was not taken.

Mr. & Mrs. B had a similar experienced.  They too were onto their second marriage and they too each had children by their first marriage but not their second.  Recognising that their main asset was their house which they owned jointly, they decided to sever the joint tenancy.  The effect of that would be to create a tenancy in common, meaning that each of them owned half the house.  The Wills then purported to leave their respective halves in trust for one another and on second death to their children.  That way Mrs. B’s children would eventually inherit her share of the house, and Mr. B’s would eventually inherit his share of the house.  The Will was done by a Will Writing Agency whose job is to do a Will and get paid and go home.  The Wills that Mr. & Mrs. B executed were quite clearly made in contemplation of severing the joint tenancy, indeed, they stated as such.  Unfortunately, the joint tenancy was never severed. Mrs. B died and her half of the house went to Mr. B who died leaving his estate to his children.  As in the first case Mrs. B’s children missed out.

I suppose the point that I am making in relating these true stories is that however important a Will is, and it is, in my view fundamentally important, it needs to be done properly by a professional and again, preferably face to face, so that other ancillary matters can be considered and dealt with at the same time.

I would like to think that had a solicitor been involved in these two documents, matters would have turned out differently.  Certainly, I would not be prepared to put a Will in front of clients, Mr. & Mrs. A in those terms.  There is no point, but sitting in my office and discussing the matter, we would arrive a solution, and as a consequence the children of the first to die would not lose out.

Similarly with Mr. & Mrs. B, had we or any solicitor been dealing with that particular case, they would have ensured that, the Wills having been signed, that steps were taken to get the title deeds of the property and to sever the joint tenancy simply so that the Wills could take the effect that both Mr. & Mrs. B wanted them to take.  It is easy and expensive to get things wrong.  It is just as easy and probably less expensive to get things right.

It is still remarkable to me that only some 30% or so of the population have Wills.  It is an easy process, it is relatively inexpensive, and it is extremely important.  I would urge any reader of this who does not have a Will to contact a solicitor and make an appointment.  A sort of New Tax Year’s Resolution.

March 2007