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Making your Will? Don’t be like Aretha – make sure your wishes are shown a little R.E.S.P.E.C.T
Tuesday, September 3, 2019
Tuesday, September 3, 2019
Aretha Franklin died on 16 August 2018. Just over a year later there are still ongoing court proceedings about her Will… or should that be Wills.
Following her death, it was initially thought that Aretha Franklin died intestate (without making a Will). However, a number of handwritten documents which could potentially be Wills were later found in Aretha’s home. This has created considerable confusion. Doubtless, this will mean an eye-watering amount of money spent on legal fees whilst the various interested parties establish how her estate should be administered and distributed.
This case may be high profile, but disputes about the validity of Wills are sadly all too common. They are also often entirely avoidable.
Scanning through Aretha’s back catalogue, it seems that some of her song titles illustrate the problems that can arise with the validity of Wills and how to prevent them from occurring….
- Say It Isn’t So – a well-drafted Will clearly states that it revokes all previous Wills (or states what provisions it does not revoke). Failing to do this can lead to uncertainty and complications.
- Get It Right – The law requires that a Will is signed and witnessed in a particular way. Get it wrong and your Will is not valid. Almost as important is keeping evidence that everything was done correctly. A number of legal cases about the validity of Wills have come down to those present at the signing of the Will giving evidence to say “Here’s Where I Came In (Here’s Where I Walk Out)”.
- Trouble In Mind – A common challenge to the validity of Wills, particularly those made by a person who is ill or elderly, is that the person making it did not have the level of capacity required by law. Suitable evidence of capacity kept with your Will can prevent these types of arguments.
- Ain’t Nothing Like The Real Thing – Being unable to locate the original Will can cause serious problems on your death. Although it is possible to prove a copy Will if the original can’t be found, this is not straightforward. It is especially difficult if the Will was stored in your home, as there is then a presumption that you have intentionally destroyed it. This is not easy to overcome and if your family are unsuccessful, your Will is deemed invalid. Storing your Will securely with an organisation such as a solicitor or bank solves this problem.
- Here We Go Again – Although reviewing and updating your Will is very important, having multiple Wills stored in different places is asking for problems. Provided your old Wills are all clearly dated so that the order is clear, they can all be kept together. You can of course destroy old Wills, but if your Will is challenged then the contents of your old Wills can be important evidence for the Court.
- One Step Ahead – Registering your Will is a final safeguard which means that your family can quickly and easily locate your Will and begin to deal with your estate. It also gives you peace of mind that, having gone to the trouble to make a Will, your wishes will be followed.
Whilst all of these are relatively simple steps, they are easy to get wrong. Taken together they can also seem a bit overwhelming (not to mention time-consuming) to anyone trying to make a Will by themselves.
This is where a regulated professional such as a solicitor adds value. As well as drafting your Will and advising you on the contents, your advisor will also be constantly working behind the scenes to ensure the validity of your Will.
At Samuel Phillips Law, we offer a complete fixed fee service which includes:
- Making sure a suitable revocation clause is included in your Will;
- Supervising the signing of your Will, providing independent witnesses and keeping records to evidence that everything has been done correctly;
- Recording evidence of your capacity in line with the most up to date legal tests, and where appropriate, arranging for a suitable independent expert to provide a supporting report;
- Retrieving your previous Wills (if we do not already hold them);
- Storage of your Will (and any previous Wills); and
- Registration of your Will with Certainty The National Will Register.
By taking these steps we can help you ensure that there are no unnecessary disputes on your death and that your wishes are clear and can be shown the R.E.S.P.E.C.T they deserve.
Written by Felicity Nelson, Senior Associate and Head of Wills, Probate & Trusts
