The Who and Testamentary Freedom
No, it’s not a song by an ageing rock group!
Everyone should at least consider making a Will. There are only limited circumstances where the rules that apply when someone dies without having made a Will (the intestacy rules) would accurately reflect your wishes.
When making a Will you need to consider the 4 Ws – Who, What, Why and When.
Unlike most European countries, which have set rules on who can inherit and in what shares (sometimes called ‘forced heirship’), in England and Wales, the person making a Will (called the testator) has testamentary freedom when making decisions regarding the disposition of their assets.
Historically testamentary freedom was a full and complete freedom to leave your assets to whomever or wherever you pleased without any restrictions. More recently that full freedom has been restricted by the Inheritance (Provision for Family & Dependants) Act 1975 and various case law decisions. So, while you can still leave all your assets to charity or a nodding acquaintance, family who believe that you have acted illogically or maliciously or anyone to whom you have a moral or legal obligation (normally someone who is financially dependent on you) can seek to have the provisions of your Will overturned or amended so that they are included in the disposition of your assets.
However, the basic principle of testamentary freedom is still the starting point when deciding who should receive your assets.
For most people there is a natural wish to provide for a surviving spouse and minor children; Indeed you have an obligation to do so but what if yours is a second marriage and you have kept your finances separate or you have provided for adult children during your lifetime? What if you do not have a spouse, partner, children or grandchildren? What if your relationship with a child or grandchildren has broken down, who would be aggrieved if you did not include them in the disposition of your assets? These are all questions you should consider when deciding on the “Who”.
The experienced and approachable members of the Private Client team at Ridley & Hall can offer advice to assist you in making these decisions. Please contact us on 01484 538421 for further information.