The Right To Choose

We live in a time when great emphasis is placed on the rights of various people.  There is a right to work, a right to a home and all sorts of other rights.  The difficulty frequently is that these do not go hand in hand with responsibilities, for example, the responsibility to pay rent, the responsibility to be qualified and so on.  One of the greatest puzzles to me as a practitioner in Wills and trusts for the last 40 or more years is that try as we may, as an industry we have not succeeded in getting more than 30% or so of the population ever to exercise its right make a Will.   I understand that there are any number of reasons why people choose not to make a Will, none of which makes sense to me.  Usually, there is some fear of confronting mortality, but, whatever else is going to happen in your life, I can absolutely guarantee that it will end. 

Perhaps the worst offenders are those who say that they have chosen to die intestate, in other words, chosen not to make a Will.  It is a ludicrous claim and, more often than not, they get it wrong.

Consider what is involved in making a Will, as against what is involved in dying intestate.  I have in the past concluded, and remain of the view that what separates the two is choice.  You demand the right to choose a Government, to choose the winner of some celebrity piece of nonsense on the television, but (unconsciously) choose to let the Government decide how your estate should devolve and who should look after your infant children when you are dead. 

I could write a book on the estates that I have dealt with which have been an absolute disaster both in terms of devolution, and indeed tax, because a Will has not been made.

Relatively recently my firm was involved in an estate of a farmer who died leaving a widow, no children, and no Will.  The value of the farm was around £2 million.

As a result of the intestacy and therefore the operation of the Intestacy Rules, it worked out that the widow, to whom my deceased farmer had been married for 30 or 40 years, received his personal chattels (of no particular value), £200,000 and half the estate.  The other half of the estate, worth some £1 million or more, passed to the deceased’s sister, who was in a nursing home and who was incapable of managing her affairs.  The Rules of Intestacy are arbitrary, and whilst they are currently under review by the Law Commission, it is likely to take some time before any meaningful amendments are made, and even then the rules by their very nature will be arbitrary and may be right in 2007, and entirely wrong in 2010.

All of this is designed to try and persuade the reader of the sense, if not duty, of making a Will.  If you make a Will then you exercise choice, which is your right.  You can choose who the Executors of your estate will be, that is the people who will take responsibility for getting a Grant of Probate, and administering the estate according to your wishes as contained in your Will.  If you have infant children, then you will decide who will bring them up as testamentary guardians, rather than let that decision be taken by the local authority.  Furthermore, if you make a Will you will decide, probably, to make that Will as tax effective as possible to reduce the impact of inheritance tax. It is a fact that if you ignore all this, and choose not to make a Will, then it is the last decision that you will take in relation to your estate and your heirs. 

I am determined to increase the percentage of people who make Wills.  It is indefensible that so few of the population exercise their democratic choice to decide how their estate should devolve.  Please do not be one of them.

A properly drawn Will is a simple and inexpensive document; it is not as painful as going to the dentist, and probably not as expensive as going to the shops.  However, I am firmly of the view that a Will is without question the most important document that you will ever sign.  It needs consideration and you, the client, need very good advice.  My suggestion is that you go to a solicitor who specialises in this field, and who is in a position to give advice regarding tax and tax planning, guardianship of minors, the creation of effective trusts, and hopefully, a hearty dose of commonsense. Remember, it is your choice.