Writing a will has been the same for centuries, but it hasn’t changed very much. And that was fine until modern technology came into play – and modern lives. But now, in the 21st century, will writing is out of date and needs to be modernised.
How could that happen?
One idea is that small errors that a judge can easily see are unintentional mistakes, should be overlooked rather than making the entire will invalid. At the moment, an error such as not being in the room when your witnesses sign the will can lead to big problems when it comes to probate. If things like this can be overlooked then the court’s time, and the beneficiaries’ inheritance, can be organised much better.
Another idea is that a will could be written via text, email, or perhaps even voicemail. There are many new and diverse ways to communicate these days, and it seems strange that currently none of them can be used to communicate what someone wants to do with their estate and body after they have died.
Executing a will is also something that always takes a lot of time, and is hard work for the person tasked with the job. If a will could be executed electronically then it would save a lot of time and worry for everyone involved. Documents and information could be passed within seconds rather than days or even weeks.
Or how about lowering the age that you are able to write a will to 16? At the moment, you have to be 18 to write a legally valid will, but lowering the age to 16 may enable young people to take more responsibility, and for those who are terminally ill to be able to make their own decisions about what will happen.
The rules that revolve around writing a will came into force – in the main – during the Victorian era when will writing became more regulated and had a legal status. However, a review by the Law Commission has concluded that these rules are behind the times, and many of them need to be updated to comply with modern living. The worry is that because these rules don’t seem to match up to how we live today, they could be one of the reasons why many people don’t write a will in the first place.
When you write a will, you must follow specific procedures in order for it to be seen as valid. If the rules that have been put in place are not followed, then your will may not be enforced, even if you have made your final wishes clear.
One of the main issues that the Law Commission found in the old rules around wills was the matter of mental capacity. When the term was created, it didn’t take into account illnesses such as dementia, which is changeable, giving the sufferer good days and bad days. Someone with early onset dementia, for example, may have problems with short term memory, but that does not mean that they do not fully understand what they want to do regarding their will. The law as it stands, however, prevents them from writing a will if they have been diagnosed with the disease, which can be problematic for them and their family, as well as highly frustrating.
Times have changed dramatically, and in this modern world it should be quick and easy to create a will that will be valid and lay out all the testator’s wishes. Electronic wills – something that the Law Commission is recommending become commonplace – will certainly help with this, but updated laws regarding medical issues that we now have a much better understanding off will be a great step forward.
A man named Stephen Jackson has been found to have stolen almost one million New Zealand dollars from his dying mother. The man actually sold his parents’ house whilst his mother was in the process of writing her will – even though that will said that Ivy Jackson wanted to split the property between her three children. However, by the time she died the house had already been sold and it was too late to do anything about it.
Stephen Jackson then took a further $250,000 from his mother’s bank account after she passed away.
Only one of Mr Jackson’s siblings was living at the time of their mother’s death, and the High Court in New Zealand found in favour of that sibling, Raymond Jackson. It was found that Stephen and his wife Linda owed almost $1.1 million, plus interest, to the estate of his dead mother.
But how could this have happened in the first place?
In January 2014, Ivy Jackson suffered a stroke and was unable to return to her home. Knowing that she was very unwell, she proceeded to write a will which, two days later, was completed. The will stated that she wanted the house to be sold, and for the proceeds from the sale to be shared between her children equally. Everything that was left over would go to Stephen and Linda Jackson.
However, because Stephen had been made power of attorney after his mother’s stroke, he had already made arrangements to sell the house.
Ivy Jackson died one year later after spending 12 months in a nursing home. Stephen said that he had had to sell the house in order to pay for the home (and the payment for it does seem to have come from the proceeds of the house sale). However, Ivy had enough put into savings to pay for these fees without the need to sell the house at that time. And, despite some of the money being used for the care home, almost $600,000 was still unaccounted for when the case went to court.
On top of that, it was discovered that Stephen Jackson used his status as power of attorney to withdraw around $300,000 from a joint account that had been held by his mother and father.
And, although they were both named as executors in Ivy’s will, neither Stephen nor Linda actually executed it, and instead continued to make withdrawals from a variety of different accounts.
The couple did not attend the hearing and they cannot be contacted, although it is thought that they have since moved to Queensland. The case is therefore ongoing.
When someone dies, unless family were told beforehand, or it is easy to find in the house, it can sometimes be difficult to know whether someone even had a will, let alone where it might be.
The problem is that there isn’t a central database of all the wills made in the UK. There is the Central Probate Registry, but it is not compulsory to enter the details of your will there, and not many people do. This might be because very few people are actually aware that it exists.
If you want to know about someone’s will for any reason, the first person to ask should be the one who has organised the funeral. They should at least be able to determine whether there is a will or not, which will aid you in your search. If there is a will, they may even be able to tell you what it consists of, but they are under no legal obligation to do this.
Once probate has been issued, the will itself becomes public. Once this is the case, you can apply to the probate registry to obtain a copy of the will. If you are unsure when probate is due to be given, you can register through a standing search at the probate registry. One registered, the search (which is set up in the person’s name, their address, and their date of death) lasts for 6 months. If probate has not been issued in that time, you will need to set up another search.
In some states in America (Alaska, Ohio, Arkansas, and North Dakota) it is possible to request ‘living probate’ to be carried out. It isn’t something that many people think about doing, and it isn’t absolutely necessary in most cases, but when it is done it ensures that the will is valid and correct before the testator dies.
The testator will be able to prove that they are in sound mind and body, and wrote the will by themselves, without any outside influences. This is useful if they believe there might be those who would choose to challenge the will after they die. By proving that the will was written exactly as the testator wanted it to be, there is then little chance that any kind of challenge can be made.
This is, however, an expensive option, and one that is not needed in the majority of cases. If there is a chance that someone will contest the will, and if doing so would create a lot of problems for many people, or hold time sensitive funds up for too long, then it could be something that some people would consider doing. And it’s not just about money either – contesting or challenging a will can cause huge family feuds and upsets. It could be that the testator wishes to avoid anything like that, and so organises a pre-death (or antemortem) probate review.
If you were to go down this route and then change your mind regarding who should benefit after you die, it is possible to change your will, or revoke it entirely. However, there will be a validated version on file, and therefore you must go to court in order to have that will destroyed to avoid any confusion. And, if you wish to go through the antemortem probate procedure for your second or subsequent wills, you would need to pay.
An executor is always expected to act reasonably when it comes to dealing with someone’s will and estate. They must act in the best interests of the estate, and the beneficiaries named in the will. This involves a number of things including getting the best possible price for any property or assets that are sold. It also means that they should ensure that the death is registered correctly. If this is not done, there could be serious implications that affect many people, and their inheritances.
The estate must be calculated correctly as well. This is to make sure that, if any inheritance tax is due, it is paid on time, and at the correct figure. This needs to be done before any of the money and assets are distributed.
The death should also be ‘advertised’, for example it could be announced in a national newspaper. This is so that anyone who is not mentioned in the will but who is owed money by the estate can contact the executor to arrange for payment. These debts must be paid off before any beneficiaries can inherit. If this is not done, and someone makes a claim after the money has been distributed, the executor may be liable for the debt.
If someone disputes the will (ie, if they question whether the will is valid, or if they have evidence that there is a newer will, for example) then there could be further claims. Being executor is an important job with huge responsibility, and it is always worth getting independent legal advice if you take the job on, to prepare you.
Applying for probate can be a complicated process, particularly if you have never had to do it before. If you don’t seek expert advice, there are some common mistakes that are often made. These mistakes can cause probate to take much longer than it needs to, making it more costly, and more stressful.
The first mistake that often occurs is that people apply for probate in the wrong country. The only place to apply for probate is in the country where the person was living before they died. Many people applying for probate apply in the country where the person was when they died, rather than their country of residence. This is not always the same place, and if you are unsure it is best to check.
The forms required can also be confusing and lead to mistakes. The forms can be found online, but although they are easy to find, they are not always that easy to fill in. Every part of the form needs to be completed, and that might require some research because all the names of the person need to be entered. Those names much match the ones on the will. This might relate to middle names, or perhaps maiden names. All the information much be correct and the same on all the forms.
Estate fees are the last area where big errors can be made. There is a special formula that needs to be used to calculate the fees and taxes due. Mistakes here can mean big problems further on, which is why hiring an expert to help at this point can save you a lot of trouble in the long term.
Sometimes organising a probate trust can be the perfect way to keep your estate simple, to avoid any protracted probate delays, and even to enable everyone to stop worrying about inheritance tax implications. A trust is a great way to give grieving families a bit of time and space to get things organised without too many – if any – complications getting in the way. It is often much more manageable this way.
There are a number of different types of trust. One of these is known as the discretionary probate trust.
A discretionary probate trust is perhaps not as simple as other trusts, but it does still allow for an easier transition that some other options. It offers a degree of flexibility after the policyholder passes away because it is the trustees who are given the discretion (hence the name) to choose who to pay from a beneficiary list. No inheritance tax will be due on this kind of inheritance because it is classed as a chargeable lifetime transfer.
However, be careful. There are some actions which can still lead to a large tax bill. For example, any gifts made within seven years of your death will be taken into account. There are many other potential pitfalls as well, and so it is always a good idea to speak to a professional about how you can bypass as many issues as possible.