Alison McKay, a Partner in our Private Client team says it’s vital that people take steps to ensure their affairs are properly in order to ensure their wishes are fulfilled.
Among them are people downloading online templates without realising they are not compliant with Scots law and also failing to keep up with changing personal circumstances. There have been reports of increasing numbers of inheritance disputes.
Alison said: “The cost of living crisis is undoubtedly a factor in this as many try to cope with the financial pressures caused by the simple fact that just about everything is now more expensive. Another is that, with families becoming more blended and / or more widely dispersed, family members may not be fully aware of their rights or entitlement under a loved one’s Will.
“Disputes regarding Wills can be highly specific and technical in legal terms. They can also be emotionally difficult given that the catalyst of the dispute involves the death of a loved one. Worrying numbers of people, however, do not seem to realise this.
“An estimated six out of 10 people in Scotland die without a Will, which means that who inherits their estate is determined by intestacy rules. That’s unsettling in itself as it can cause unnecessary uncertainty, upset, delay and expense for those left behind.
“Expert - and tailored - advice when drafting your Will is critically important. Some people try to avoid doing this to cut costs, which is understandable. But this can actually prove more costly and upsetting in the long run.”
While there is no sure way of preventing a dispute over a Will it may be possible to reduce the risk by avoiding five common mistakes when drafting your final wishes.
1. Choice of executor/s
Getting this right is important. Your executor must be competent and willing to do the job. If you need a number of executors, they must be willing to work together.
2. Whereabouts unknown
Many people think their families will instinctively know where to find their Will. But the reality is that even spouses sometimes do not know where their partner’s Will is - or whether what they can find is the most up-to-date version.
The easy solution is to have your Will stored by your lawyer, to keep your own copy in a safe place and tell people about those arrangements. These are not comfortable conversations, but they can save a lot of stress and heartache.
3. Falling behind the times
Life events, such as cohabiting, marriage, separation, divorce, remarriage, having children and the death of an executor or beneficiary generally require a Will to be updated. Some events may even invalidate your Will. Others will not, but it may be that your Will no longer suits your family circumstances. If in doubt, it’s best to check.
One frequent issue is where parents leave a child - perhaps from an earlier relationship - out of Will, without recognising their legal right to a share of the estate.
4. Textbook errors
Number one is using an online template which has not been drafted in accordance with Scots law - or that people fail to sign their Will appropriately or have it witnessed properly. Each scenario will lead to delay and extra expense.
Alison explained: “Asking a solicitor to help you avoid these errors could help protect your loved ones and avoid family conflict at a time when they ought to be supporting each other.”
Wills are part of a package of measures which people of all ages are advised to put in place, including a Power of Attorney (PoA). While discussions on these generally might focus on planning for older age, Mrs McKay says it is circumstances where the need for a PoA can occur at any point during your life so is something that no-one should overlook.
For those with businesses, it can make clear who would pay suppliers, manage the bank account, deal with contracts or insurance, file VAT returns or generally keep customers happy? A business PoA is similar to a personal one in that someone is chosen to make decisions on your behalf, but it includes powers to continue and manage a business.
“Like properly organising your Will, it’s cheaper to think ahead and put measures in place than have the business paralysed by legal disputes or problems,” Alison said. “I often think of a PoA like insurance – something you hope not to use but are relieved to have if disaster strikes. With family businesses in particular, the personal and the commercial cannot be treated in isolation.”
