There is no obligation for a Will to be prepared by a lawyer, however, in practice, it is advisable to take professional legal advice. There are many pitfalls involved with off the shelf kits – now, of course, this is something that a lawyer would say – but to emphasise my point, here are a few examples where issues arose because legal advice was not taken.
Wills not witnessed correctly
1.) Mr Smith signed his homemade will in front of witnesses. The problem arose when the will was contested by a disgruntled adult child who felt they were entitled to a part of his estate. Unfortunately, it transpires that although the will detailed two witnesses had seen him sign the will, they were not both in the room at the same time and therefore the will was not valid. As a consequence, Mr Smith’s estate was administered following the laws of intestacy, which included a legacy to the child which was not what Mr Smith wanted.
2.) Mrs Brown signed her homemade will in front of two witnesses who were both present in the room at the same time. Unfortunately, Mrs Brown had not taken legal advice and one of the witnesses was her niece (Carol) who was also due to inherit 25% of her estate. There was no question of undue influence by Carol, but by simply acting as a witness she effectively disinherited herself from Mrs Brown’s estate.
Unnecessary inheritance tax charges
Mr Jones. An 85 years old suffering from ill health, decided to gift £50,000 to one of his children two years ago. Mr Jones then made a homemade will where he left a number of specific monetary legacies to family members and godchildren. The total value of these legacies being £400,000. The rest of his estate was to pass to his wife, who was 75 years old and in good health.
Mr Jones did not take any legal advice in relation to either the legacies in his will, nor the large gift that he made. When Mr Jones died his estate had to pay inheritance tax. This could have been avoided if he had taken advice, as the lawyer would have explained to him the current value of the nil rate band (2015/2016 £325,000), which is the amount of the estate which is taxed at zero percent. It would have been better to limit the legacies and gifts to this sum and leave the balance of his estate to his surviving spouse. This would mean that there would be no charge to inheritance tax on Mr Jones’ death and his widow could then make lifetime gifts.
An alternative option could have been for Mr Jones to gift £25,000 to his wife as there is no inheritance tax between spouses, who could in turn have gifted the £25,000 to the child along with Mr Jones’ £25,000 gift. This would have reduced the amount of inheritance tax due on Mr Jones’ gift.
As you can see, taking professional legal advice would have prevented the problems raised above; the deceased’s wishes would have been followed and potentially less inheritance tax paid.
Partner at New Quadrant Solicitors
Vanessa advises clients on their estate planning, considering the most tax efficient way to meet their wishes, to include advising on wills and gifting assets or setting up trusts during their lifetime.
Vanessa is a fully accredited SFE (Solicitors for the Elderly) member and has passed the Elderly Older Client Care in Practice Award.
New Quadrant Partners is a private client legal practice and advisory service. Based in London it provides for the needs of both UK and international families.