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‘Where there’s a Will, there’s a way’

March 13, 2019 Wills, Executry & Probate

The mere thought of a Will to some people is distasteful. Connotations of death and immortality are not ones in which people wish to discuss at length if at all.

However, having a Will in place is in fact significant post-death and provides an assurance both to the deceased and their families that money and possessions will be distributed as per their wishes. If there is no valid Will, a person is said to die intestate therefore certain rules called the rights of succession are provoked. Such rights will dictate how both money and possessions are allocated regardless whether it was the deceased’s intentions or not. Consequently, making a Will is therefore more important than ever.

A Will is a legal document created by a person pre-death on their wishes post-death such as how their property, money and other possessions should be distributed. Often a Will names an until its final distribution. Sometimes the solicitor who has drawn up a Will may be appointed as Executor although other such family members can also be included to distribute the assets of an estate.

There are no specific requirements on what should or should not be included within a Will in Scotland yet it is often advisable to consult a solicitor before making any final decisions. A Will can cover a number of issues such as who should inherit property, money and other possessions. It also considers how children under the age of 18 should be cared for following death as well as identifying who the Executors are. It may also include special arrangements for a funeral as well as any charitable donations that you would like to make post-death.

A Will has legal effect when it is satisfies certain requirements. Therefore, a Will must be made voluntarily without pressure by a person who is 18 years old or over. The person must be of sound mind thus fully aware of the nature of the document being written or signed and the ensuing legal effect. The Will itself must be made in writing and signed by the person making the Will in the presence of two witnesses who must also be signatories to the document. It is also advisable to ensure that the Will is dated on the day it was signed although this can be overlooked and an undated Will can still be legally valid.

The cost of drawing up a Will is dependent on the solicitor of choice. There are no set charges for Will drafting and thus the cost is entirely reliant on the complexity of the Will itself. Some solicitors may even offer a discount if spouses make Wills at the same time and both have similar terms often referred to as ‘mirror wills’. Moreover, Legal Aid may be possible in some instances if a solicitor considers the type of Will to be complex and advice is needed in terms of Scots law as well as if a person is financially eligible.

A person may elect to change their Will because of a change in circumstances however this should not be attempted without the advice of a solicitor. Any alterations to a Will after it has been signed and dated are not assumed to be valid and can amount to costly legal proceedings if there is uncertainty about a Will and its terms. As such, altering a Will is only possible by making a codicil to the Will else by drafting a completely new document. A codicil is recognised as a supplement to a Will which identifies some alterations but leaves the rest of the Will intact. It must be signed by the person who made the Will and witnessed in the same way although the witnesses need not be the same as for the original Will. Codicils are often only useful for minor changes to a Will such as increasing a cash legacy or changing an Executor. Therefore, if changes are likely to be more than minor, drafting a complete new Will is advisable. The new Will should then contain a clause that revokes all previous Wills and codicils whilst the previous Will should be destroyed thus is considered no longer valid.

Destruction of a Will should involve clear intention that it is revoked therefore it should be burnt, torn up or otherwise destroyed in your presence. Such destruction therefore confirms that it is a person’s wish to revoke the document. However, if a Will is destroyed accidentally then it can still be declared valid providing that there is a copy available which can then be petitioned in court.

In all circumstance, it is generally advisable to consult a solicitor when making a Will to ensure that it has the desired legal effect. It is common to make mistakes if there has been no prior consultation with a legal professional and this often results in errors and further complexities post-death. As such, costs are largely reduced in making a Will on the advice of a solicitor initially as opposed to seeking legal advice thereafter once mistakes have been identified.

Failure to make a Will pre-death in Scotland results in rules known as the rights of succession being provoked. As such, the law therefore dictates the order in which spouses and descendants inherit from the estate. ‘Prior rights’ provide first for the surviving spouse or civil partner where they would inherit the home up to a value of £473,000, furnishings up to a value of £29,000 as well as a cash sum up to £50,000 if the deceased had children increasing to £89,000 if there was no children. In instances where there is no surviving spouse or partner, such intestacy rules dictate the order in which relatives would inherit beginning with the children of the deceased, or if they are not living then their grandchildren. Failing both children of the deceased and grandchildren, half of an estate would then be apportioned to the brothers and sisters including their descendants and half to the parents if still living. Aunts and uncles are then next in line and then grandparents if necessary. As such, the rights of succession are non-negotiable and are prompted through a lack of pre-death planning on the part of the deceased. Therefore, whilst Will drafting might seem like an annoyance, it is not a difficult task nor is it a costly exercise. Consequently, where there’s a Will, there’s a way…

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