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To will or not to will, that is the question.

A photo of Noel McNicholas
by Noel McNicholas 12th May 2023

Our contentious probate specialists are often instructed in disputes surrounding the provisions of a will and disputes can follow the death of a loved one. And we are occasionally asked if a will is even worth the paper it is printed on, if it can be disputed.

Our view, from a contentious probate perspective, is a will is always far preferable than dying “intestate”, when the distribution of the Estate is decided in a fixed and inflexible way. This means the Estate - and who controls it - is decided in a set way depending on who the surviving family are. Does an intestacy instead of a will solve the problems? Most certainly not. And it is for that reason we feel it far better the testator commits their wishes to a valid will before it’s too late.

A will sets out how the testator’s assets and property should be distributed after their death. Writing a will is an important task that should not be taken lightly, as it can have significant consequences for those left behind. The reasons for writing a will are many and varied:

  1. A will can give you peace of mind that your assets will be distributed according to your wishes. If you do not have a will, your assets will be distributed according to the laws of intestacy. These laws are inflexible and may not remotely reflect your wishes (though it is also possible they will). For example, if you are not married but have a long-term partner, they will not automatically inherit anything if you die without a will.
  2. There may be friends and other family members that you can benefit who would miss out if you died intestate.
  3. The testator chooses who they want to administer the Estate, in other words who their Executors will be.
  4. A will can help to reduce the likelihood of disputes among family members. Those left behind will bear in mind these are the wishes of the testator. In the absence of a will, family members may have different opinions about how assets should be distributed, which can lead to fierce and expensive legal disputes. By making your wishes clear in a will, you can help to prevent these kinds of conflicts. Can these conflicts be ruled out altogether? No, but the wishes of the testator are a primary consideration for any court hearing a dispute.
  5. A will can help to reduce the amount of inheritance tax your Estate will have to pay. Inheritance tax (IHT) is charged at a rate of 40% on the amount above available exemptions/allowances including the basic Nil Rate Band allowance of currently £325,000. However, there are many ways to reduce the amount of IHT your Estate will have to pay, such as by making gifts to charity, by setting up a trust and making use of annual exemptions. We can assist you with making the most tax-efficient arrangements for your Estate.
  6. A will can provide for the care of any dependent children. If you have children who are under the age of 18, you can use your will to appoint a guardian to take care of them in the event of your death. This can provide peace of mind for both you and your children, as you will know that they will be taken care of by someone you trust.
  7. A will can even set out details of your funeral arrangements.
  8. A will can be a straightforward and relatively inexpensive process. But we would always strongly recommend instructing a solicitor rather than using a DIY will kit (which are recipe for disaster).
  9. Put another way, it is far, far cheaper and less risky to make a will than seeing your family and friends embroiled in a fierce dispute after your death.
  10. And finally, if an intestacy arises, it is quite possible the testator’s Estate will pass to people they don’t like (or in some cases don’t even know). It’s a nice surprise for those who inherit unexpectedly and a nasty surprise for those who don’t.

A will usually has significant consequences for those left behind. It is sometimes a good idea to have these discussions openly with the family or friends whilst you are thinking about your final wishes. Remember, you can change those wishes at any time thereafter provided you have capacity, know and approve those changes and are not subject to undue influence of any kind. But at the end of the day (and the end of a life) there are far more good reasons than bad why it is wise to prepare a will, including peace of mind, the prevention of disputes, tax efficiency, provision for dependent children, who controls the Estate and the relative ease and low cost of the process.

We don’t claim that a will is destined to resolve all the problems and issues that can arise after your death, but it’s a good starting point.

If you do not have a will, it is recommended that you consider instructing a solicitor as soon as possible. Get in touch with the Thomas Flavell & Sons Private Client Team today to write your will, or update an existing will. With offices in Hinckley, Leamington Spa, Market Bosworth, Warwick and Stoney Stanton.