... is just another name for will writing
Could a DIY will be the cause of a family fallout?
I have just had a meeting with a new client who has asked me to write her will. She has a long-term partner with whom she is cohabiting, but he had just updated his simple will (on a DIY basis) and therefore I was tasked with only writing her will.
At the initial meeting she insisted her will was very straightforward. She had a modest estate and no children from her previous marriage. The house, valued at more than £500,000, was owned as tenants in common with ownership split according to their contribution, which in this case in 20% in her name and 80% in his. The most important objective for the partners’ wills was to ensure that each inherit the other’s share of the house on death, and as neither had children they felt that beyond making sure each were looked after in the event of their respective deaths, there was not much more to think about. Or was there?
Mirror wills, NOT basic single wills
When writing wills for people who are in long term relationships, especially when they are not married, and they have no common bloodline, which is usually where the estates will ultimately go, there is reason for caution. It is recommended that both partners write wills at the same time so that these “Mirror Wills” can give effect the intentions of both partners in as many scenarios as possible. There is no crystal ball.
In this case, if drafted as two single basic wills, the combined estates of both will end up with the last to die’s beneficiaries. In this case, because my client is female and younger than her partner, the ultimate beneficiary is likely to be my client’s niece. Or perhaps even the children of my client’s subsequent partner or spouse – this cannot be her partner’s intention. A huge family dispute will likely ensue.
Consider who might be disinherited
If you are doing a DIY will, can you be sure that you considering all angles? The client’s partner also has nieces and nephews, and he owns the majority of the combined estate. Based on the split of the house, I can assume that his estate is perhaps 5 times larger than hers. If you were his sibling, niece, or nephew, how would you feel about not inheriting a penny of his estate and seeing it all go to nieces and nephews on the partner’s side? I suspect you may feel rather disgruntled. It is also likely that this disinheritance of his family is not intentional, but this is a common outcome of writing a will with a single objective of looking out for only one person.
You should spend some time Scenario planning
It is vital that when writing your will you do some thinking around the various scenarios as to what would happen according to who died first. Whilst uncomfortable, it is also important to consider the disaster scenario where both partners die together, for example, in a plane crash. In such a scenario the law assumes that the older dies before the younger. Again, the future is looking rosy for my client’s niece.
It is rarely straightforward
So not at all as straightforward as first thought. The solution in this case is a will trust providing the surviving partner with use of the property (and possibly other assets) but naming ultimate beneficiaries when the trust is wound up on second death. This way the nieces and nephews of both partners can benefit, and a colossal family dispute is averted. The value that a will writer can bring is well worth the investment. I promise you that your nieces and nephews will thank you for it!