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Wills and Other Death Dispositions

Document Cited authorities 3 Cited in Related
Vincent
AuthorLesley King/Peter Gausden
Pages1-8
1 Wills and Other Death
Dispositions

1.1 Why make a will?

The most obvious reason for a person to make a will is to avoid any questions of inheritance being decided by the rules of intestacy (see para 1.4), which may apply in a general and impersonal fashion. However, a practitioner advising a client might also consider the following:

(a) A will is a flexible instrument which permits the person making it (the testator) to make more varied and complex provision for the testator’s family and dependants (e.g. by way of a will trust) than that which is offered under the intestacy rules. So even though the intestacy rules may ultimately benefit the same people that the testator wants to name in the will, the testator can determine the terms and conditions upon which they inherit. Chapters 13–15 look at the types of dispositive provisions typically found in wills.

(b) Testators may select their own executors and trustees to carry out the terms of their wills, whereas, on an intestacy, the choice of administrators to do a similar job is determined by the court under rule 22 of the Non-Contentious Probate Rules 1987 (NCPR 1987) (as amended). The appointment of executors and trustees is considered further in Chapter 11.

(c) A will may incorporate additional powers for its executors and trustees to facilitate the administration of the estate and satisfy further demands of the testator. This may be of particular relevance if, for example, the will sets up a trust for children or the estate comprises a business which needs to be managed or sold during the administration. Such additional powers can also be to the advantage of the beneficiaries. The provision of powers for executors and trustees is considered further in Chapters 18 and 19.

(d) A will may appoint a guardian for the testator’s minor children. This can be an important issue for those with young children. The appointment of guardians is considered in Chapter 12.

(e) There may be tax advantages in a carefully drafted will, particularly if tax planning through a will is considered in conjunction with wider

2 Wills: A Practical Guide

lifetime tax and financial planning. The larger the estate, the more likely it is that this will be a significant issue (see, further, Chapter 17, which considers the planning of a tax-efficient will).

(f) A will may offer an opportunity to plan for future care fees or for a disabled beneficiary in cases where conferring an absolute entitlement on a beneficiary might prejudice entitlement to state funding and benefits.

(g) A will offers the testator some certainty and peace of mind. Looked at from the point of view of the beneficiaries, it is also a positive statement of generosity on the part of the testator.

Appendix 1 contains an example of a family will with a supporting commentary. This illustrates the usual layout, structure and content of a will, and serves as an introduction to some of the terms that are used in this book.

1.2 What wills can give away

As most people might expect, a will can generally dispose of any property which a person owns. Subject to what is said at para 1.3, a person can, by will, not just give away tangible assets, such as land and personal chattels, but also dispose of intangibles, such as contractual rights, benefits and other interests which are capable of transmission or assignment to another. Furthermore, the fact that a will does not come into effect until death means that it can dispose of all property which is owned when someone dies and not just that owned when the will was made.

However, whilst a will is an important step to ensuring that a person’s last wishes are met, not everything that someone apparently ‘owns’ can be left by will. It is vital for anyone advising on the terms of a will to be made fully aware of the testator’s property interests. Where necessary, any competing claims to ownership must be properly investigated, not just to ensure that...

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