Have you updated your Will?

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It cannot be stated in strong enough terms but making a Will is crucial if you want to maintain control over what will occur in the event of your death.

Irrespective of age, if you own any savings, have a house or mortgage, there are dependants, children, or grandchildren that you wish to provide for, or even if you want to ensure your dog is looked after appropriately after you have gone; having a Will is the only legal answer.

The main issue comes when people believe that the act of simply having a Will drawn up is where it all ends. Wills are not something that should be created and then forgotten about. In doing so, you could in fact cause more problems than you solve for the loved ones that you leave behind.

So, what are the dangers of not updating your Will regularly? How often should a Will be reviewed? And in what circumstances should changes be made?

What happens to your estate and assets if you don’t have a Will?

If you die without a Will in place, this is referred to as dying ‘intestate’ and as such your assets will be managed in accordance with the rules of intestacy. This means that the law will decide how your estate is divided up which may, or may not accurately reflect what your wishes are.

How the estate is divided is dependent on a number of factors, such as whether you are married, or how many children or dependants you have. In England and Wales, the law will prioritise beneficiaries starting with immediate family, then moving down the line through parents, siblings, cousins, aunts or uncles etc. If there are no surviving relatives, however, the entire estate will pass on to the Crown.  Please note that the rules of intestacy vary in both Scotland and Northern Ireland.

This is problematic if you have loved ones who aren’t directly related. A good example would be a partner, who you own a home or other assets with but to whom you aren’t married. Regardless of the length of the relationship, they would not be considered within the rules of intestacy and will not automatically receive any benefit from your estate. Likewise, any step-children or friends won’t have a legal entitlement to any of your assets either.

What happens to your estate and assets if you haven’t updated your Will?

You would be forgiven for thinking that by making a Will, your wishes will be respected and intestacy rules will no longer pose a problem but it is not that simple. What if your personal circumstances have changed?

For example, if you divorce after a Will has been made, then remarry without drawing up a new one, your existing Will is ‘revoked’, i.e. cancelled. This means that you no longer have a valid Will and as such your estate will be distributed according to the rules of intestacy.

In the circumstances above, your new spouse will still be a beneficiary under the rules of intestacy, but they will only receive the first £270,000 (or £250,000 depending on when the death occurred), with the remainder then divided between your spouse (either outright or on trust depending on when the death occurred) and any children you might have. If you have no children, the remainder will pass down the line in order of immediacy as mentioned above, who receives exactly what will depend on when the death occurred and in some cases the value of the estate.

This could mean that your new spouse now jointly owns a house with your children from a previous marriage. Or that your step-children, who you have loved as your own and wanted to provide for equally, have been left with nothing.

Consider then, that you never divorced, and your current relationship was never legally recognised through marriage or civil partnership. If you are only classed as being separated from your spouse, your current Will is still valid, regardless of how long you have been separated, and whether or not you have established a new relationship since. As such, if your existing Will still lists your estranged spouse as the primary beneficiary then it will be them who will receive the proceeds of your estate, not your current partner or any children you had together.

How often should you update your Will?

There is no hard and fast rule about how frequently a Will should be updated, as it will depend on the contents of the latest version and how much your life has changed in the interim.

The general recommendation is that they should be reviewed at least every five years, so long as nothing momentous has happened in the intervening period. This usually means, births, marriages, or deaths. You should also consider any large assets that have been acquired, businesses that have been established or sold, name changes, partnership dissolutions, or relocations. If something occurs that changes your personal circumstances, you should always review the contents of your Will and check that it accurately depicts your current financial and familial situation.

In what circumstances should you update your Will? 

  1. Whenever you marry or enter a civil partnership, whether that be for the first time, or on any subsequent occasion. Marrying or entering a civil partnership will revoke an existing Will unless there is a clause referencing the intended marriage or civil partnership. If you are engaged to be married or enter into a civil partnership, you can ask that your Will is prepared to state your intent to marry or form a civil partnership, to whom, and how they should benefit in the event of your death. This formally confirms your intentions that your Will should not be revoked on your upcoming union, and therefore it won’t be invalidated once it has taken place.
  2. Should you become a parent or step-parent and wish to make arrangements for financial support or ongoing care in the event of your death.
  3. Divorce or dissolution of a civil partnership does not alter the validity of a Will but the former spouse or civil partner will be treated as having died before the person making the Will.
  4. It’s common for people to appoint their spouse as the main beneficiary and Executor/Trustee. If there is later a divorce or annulment of a civil partnership, your ex-spouse will be prevented from administering or benefiting from your estate, which may go against your wishes.
  5. Many couples choose to have ‘mirror’ Wills, which in effect show that each party’s intentions mirror those of the other. They do not provide a legally binding contract between partners, but the Wills themselves are individually binding. This means if one party revokes their ‘mirror’ Will, or changes it for whatever reason, the legality of the remaining ‘mirror’ Will shall be unaffected.
  6. Depending on when your Will was made or last updated, your children may now be legally classed as adults. As such, they will no longer require legal guardians, plus they could also make suitable Executors.
  7. If you bequeath a specific property in your Will, which you later decide to sell or relinquish ownership of, this will need to be removed from your Will.
  8. If any person mentioned in your Will changes their name, for whatever reason, it is important that this is updated. Furthermore, should an Executor or beneficiary die or become incapable of acting on your behalf, then this will need addressing.
  9. Should there be a change to your financial position, such as bankruptcy, windfall, or inheritance. This will impact the size of your estate, and will need to be considered in terms of how your Will is structured.  You may also want advice on how this impacts your estate regarding Inheritance Tax (IHT).

Case study: Failing to update your Will – A cautionary tale

If you already have a Will but have not updated it following a change in circumstances, then the outcome of Martin v Williams may prompt you into action. It also threw light on the rights of cohabitees to make claims for financial provision from the estate of a deceased partner.

Under the provisions of the Inheritance (Provision for Family and Dependants) Act 1975, cohabitees must prove that they were living as ‘husband and wife’ with their partner (or as civil partners ) for a least two years prior to their death to make a claim. However, claims made by cohabitees are restricted to reasonable financial provision for their maintenance.

In this case, Mr Martin made a Will 28 years prior to his death in 2014. In it, he left his residuary estate to his wife from whom he later separated. He then lived with his new partner, Mrs Williams from 2009 and they owned their property in equal shares . Mrs Williams was also the joint owner of another property with her sister, which they had inherited from their father and was occupied by her sister.

Mr Martin never updated his original Will and, subsequently, Mrs Martin inherited his residuary estate which included Mr Martin’s 50% share of the property he shared with Mrs Williams.

Under the terms of the Act, Mrs Williams then brought a claim for reasonable financial provision from Mr Martin’s estate. As she had been cohabiting with Mr Martin for more than two years, the court ruled in her favour and awarded her the other 50% share of their joint property. The judge disregarded Mrs Williams share of the inherited property due to her sister’s occupancy and limited financial means. Mrs Martin then appealed against this judgment.

The appeal judge upheld Mrs Williams’ claim and but ruled that her 50% share of the inherited property should be taken into account because it was a material asset and Mrs Williams admitted to the court that her sister was in a position to downsize.

On this basis, Mrs Williams was awarded a ‘life interest’ (a type of trust arrangement which allows someone to live in the property) in Mr Martin’s 50% share of their property.  However, this 50% share would ultimately pass  to Mrs Martin.

The moral of the story is that Wills demand a certain level of care and attention to remain effective. Regular updates are the only way to ensure that your wishes will be respected when your gone, so inaction is not really an option.

Our experienced team at Buckles would be happy to discuss your needs, be that drawing up an initial Will, amending an existing one, or contesting the contents of a Will belonging to a now-deceased relative.

We offer advice based on the individual’s wishes, with their best interests and those of their family in mind. So don’t delay until tomorrow what we could help you with today, and save your loved ones the emotional and financial stress of managing an outdated Will in the future. Contact us now for a consultation.