When someone dies, there can be an expectation amongst family members that they will automatically receive a share in the estate. Regrettably, that is not always the case. Misunderstandings often lead to arguments and disputes in the family, which is the last thing the family of the deceased need at a time of great sadness. That is why it is sensible to try to reduce family conflict with a Will. 

Making a Will is usually a simple, straightforward process, and anyone thinking of making a Will should engage the professional help of their solicitor. Contact our team today to find out more about how we can assist you.

What to include in your Will

There are many elements to consider when drawing up a Will. One of the most important elements is deciding who to appoint as your executor. An executor is the person who will deal with the administration of your estate. You should think carefully about whom to appoint. It is important you choose someone who you trust will follow the instructions in your Will. Also, it is prudent to have more than one executor to cater for a situation where your first choice as executor dies before you do, any additional executors can be joint executors or substitute executors.

Think carefully about how you would like to distribute your estate. Do you wish to leave specific items or a proportion of your estate to certain people? If you do, you should think about creating a legacy or make a bequest for those people. You might also consider making a donation to charity from your estate. You can specify all of these in your Will so that there is no doubt about your intentions. Once you have dealt with specific items, everything that is left is called residue. You should decide who should receive the residue of your estate. You can leave this to one or more people or share it out in any way you want. You do not have to share it out equally.

Preparing for the unknown

You might also think about what should happen to a share in your estate should the intended beneficiary die before you do. Depending on how the title to the family home is structured, you should think about how you deal with this. If it is in joint names, do you need to make sure your spouse or partner has a right to remain living in the house after your death? This is especially important if your children inherit your share in the house and might want your partner to move out so they can realise the value in their inheritance!

If you have young children, the obvious guardian should they die is the surviving parent. But what happens if you both die? You should consider appointing a guardian in your Will to ensure your children are properly looked after until they become adults. In Scotland, that is when they are 16 years of age.

If you have any specific preference on whether you wish your remains to be buried or cremated, it can be helpful to express that in your Will.

This is not an exhaustive list but it does give you an indication of the things you should think about when you decide to make a Will.

Be honest with your family about your wishes

When you die, some family members may have made assumptions that they should share in your estate. But you may have decided otherwise. This can cause untold grief and endless arguments as well as threats about challenging the Will. 

Once you have decided to make your Will, speak to your family about it. Explain what you have decided to do and why. It is important they understand what you have decided to do and why. They do not have to be happy about it – but at least they will be aware of the position.It is important to reach an understanding with your family. If they are not aware of your intentions, in the high emotional atmosphere following your death tempers can flare for the slightest of reasons.

On a more positive note, once you have decided to share out your estate amongst your family members, if you tell them what you are proposing to do, it might help them with their future financial planning. Also, depending on your financial position and the possibility of there being an Inheritance Tax issue, discussions with your family may lead you to distribute part of your wealth now rather than waiting until you have passed away. 

What happens if my Will is challenged?

In Scotland, there are a limited number of grounds on which a Will can be challenged. A Will, properly prepared by a solicitor, it likely to withstand any challenge. 

However, when someone wishes to challenge a Will, they must base that challenge on at least one of the following four grounds: 

Incapacity

Those challenging may argue that the person who made the Will was not mentally sound at the time they drew up the Will. This is a difficult challenge to sustain if a solicitor was engaged to prepare the Will. If solicitors have any doubts, they will seek medical evidence about the testator’s capacity. 

Facility and Circumvention

Where those challenging claim that the testator was in a weakened mental state (but not fully incapacitated) and has been influenced by someone to that person’s benefit and to the detriment of those challenging. 

Undue influence

To prove this, those challenging the Will need to show that someone pressurised the testator into drawing up the Will in a particular way and without that pressure, the Will would have read differently. 

Fraud

In this case there must be evidence of deceit. Common examples of this are where the Will has been forged or where a person creates a false identity and passes themselves off as someone else and inherits a share in the estate as a result. 

The best way to ensure the Will remains challenge free is to have a solicitor prepare it for you. If you would like to discuss drawing up your Will, please contact us. 

Specialist Estate Planning Lawyers, Edinburgh

Murray Beith Murray Partner, Andrew Paterson, specialises in succession and estate planning and is an expert in Will writing. If you would like to discuss any of the issues covered in this article, or if you require assistance with any other matter, please complete our contact form or call us on 0131 225 1200.

Murray Beith Murray was established in 1849, as advisors for generations of clients, committed to our values of integrity, expertise and trust. This aim and these values continue to this day as does our commitment to be here when you need us