Doing something great with your Last Will and Testament

There have been some wonderful examples recently of people using their Last Will and Testament to make lasting change in the World. The first one I saw was “Town is left £2m legacy by terminally ill banker to help keep it ‘beautiful’. According to the article “When banker Keith Owen was diagnosed with cancer and given only eight weeks to live, he started to think of ways to leave his mark. In the end he said it with flowers – one million of them to be precise – leaving them to the seaside town he had fallen in love with. Shortly before his death, Mr Owen, 69, a Canadian citizen, took the astonishingly generous decision to change his will and leave his £2.3million fortune to Sidmouth in Devon.” He now wants residents of the town to embark on a project to plant 1 million bulbs.flowers

Then there was the story of an elderly lady who left an alarm clock to a hospital, but in it, she had stuffed $10k in cash and a $7k gold bar.

In Wales, Bob and Flora Livsey left £550,000 to go towards services at Glan Clwyd Hospital, Bodelwyddan. It will help fund a catheter laboratory which is due to open next year.

And then, a couple of weeks ago the story of the Toronto Woman, who left her life savings to police dogs and horses. This story in particular describes something of the thought processes behind charitable bequests;

“She’d earlier intended to leave her money to an animal sanctuary, but changed her mind after reading an unfavourable story about it in the newspaper. She then decided to give it to the Toronto Zoo. But again changed her mind after reading a story about the elephants leaving the zoo.”

The article also explains the lack of constraints imposed by the legacy “she wasn’t specific about how the money was to be used — just that it was to benefit the care of the 27 police horses and 32 police dogs. Police have been looking at several options, such as new saddle blankets for the horses. “It’s things like that which really fit into the spirit of what she wanted, I feel this is a real responsibility she’s entrusted me to look after … these are her life savings, so it certainly makes us feel even more concerned that it goes to what she wanted.’”

These few examples demonstrate how much positive difference can be made when preparing one’s Will. For many people, money is tight, and finding spare funds for charitable donations throughout the year can be challenging. But including a legacy within a Will is a painless way to show your appreciation for an organization that has touched your life.

You can make a Will in about 20 minutes at www.legalwills.ca, www.legalwills.co.uk and USLegalWills.com, and within that document, it is easy to set up a charitable bequest either as a fixed amount, or as a percentage or your estate.

Challenges to Wills…Sir Jimmy Saville’s estate frozen.

In a previous blog article we explained the different grounds for a successful challenge to a Will. We thought that this was an important article as it is often cited as a reason for not writing your own Will. Many times we have seen lawyers claim that if you write your own Will or use a service like the one at LegalWills, then your Will is more likely to be challenged. In our previous article we explained that there are five key grounds for a challenge (see the original article for a more detailed description);

  • Mental capacity: The person making the Will must understand that they are indeed writing and signing their Will
  • Undue influence: In order to contest a will on the ground of undue influence, it must be shown that the testator did something contrary to his or her true desires.
  • Improper execution of the Will: This varies by jurisdiction but in general the document must be signed in the presence of two or three witnesses who are not beneficiaries in the Will
  • Fraud: This can take many forms from the falsification of documents including forged signatures
  • No provision for dependents: This varies widely across jurisdictions but there are sometimes people who have to be included in a Will.

Last week, we saw an example of the “no provision for dependents” in the case of Sir Jimmy Saville. A three page Will, prepared by a solicitor in England, being challenged by a person claiming to be his illigitimate child. In this case though, the solicitor is blameless, as it is almost certain that Sir Jimmy did not divulge to the will-writer that he may have a child from a short intimate encounter in 1970!

But it is worth keeping in mind that according to English law a dependent can challenge based on the Provision For Family And Dependants Act where according to the article

The Act gives a child or other dependant the right to make a claim against their parent’s estate, for which they are required to successfully argue that ‘reasonable financial provision’ was not made for them.

They would also have to prove that whatever amount they sought was a ‘reasonable maintenance’, based on how well they already were able to support themselves’.

It is complicated, because as the solicitor in the article rightly explains

“a judge would pay close attention to what Mrs Ray needed to maintain herself financially. This is where adult children with jobs or earning capacity often fall down, as the vast majority tend to be financially independent and used to providing for their own standard of living, It would be open to the court to conclude that nothing at all was in fact reasonable financial provision, and it may well do that, if it considers that she is well provided for from her own resources.”

I always find the comments underneath the article to be the most interesting and it appears that sympathies lie with the daughter who grew up without a father. The three most approved comments are;

“I assume he didn’t pay for her upbringing so why shouldn’t she have a claim to it now? No amount of money can replace not being loved and raised by both your parents. She will forever be affected by this rejection.”

“She’s entitled to it. Shame on him for not acknowledging her”

“Saville had the opportunity to address this when he was alive and chose not to. He had a responsibility. God luck to her …”

So the lesson? firstly, make sure that you have written your Will, and then make sure that it is up to date. Using a service like the one at LegalWills.ca, USLegalWills.com and LegalWills.co.uk, you can update your Will in a few seconds to make sure that it always reflects the most recent changes to your financial and personal situation. Things can happen in your life, not just to you, but to people mentioned in your Will. It may not be an illegitimate child coming out of the woodwork!! but there are countless reasons why your Will would need to be updated; if the guardian for your children suddenly becomes unable to take on that responsibility, if your Executor no longer seems the most appropriate choice, or if somebody comes into your life who you may wish to acknowledge in your Will.

We will be watching this case with interest to see whether the courts overturn Sir Jimmy’s Will.

The importance of a verbal legacy

It happens all the time; a person dies and the debates immediately start around who was promised what. When there is no Last Will and Testament, these discussions often get more fractious. How important is a verbal promise to leave a certain item to a particular individual? well, not very important at all as it turns out. It actually means almost nothing at all.

There are a number of issues with relying on verbal promises. The most obvious is that the same item can be promised to many different people over time and it is impossible to keep track of who was last promised each item. This is why a verbal commitment to leave something to an individual cannot form part of an estate plan. More importantly, if a person dies without a Will, it doesn’t really matter who was promised what; the courts decide how an estate will be distributed and this will be according to the intestate laws of that particular jurisdiction. If a neighbour was promised a prized antique, there is almost no chance of them receiving it unless the legal beneficiary feels particularly charitable after the estate has been distributed. 

If there is a Will, then the estate is distributed according to the instructions within the document. There is absolutely no discretion to overrule the contents of a Will based on a claim that a verbal promise was made.

Even if the remaining loved ones think they agree on how Aunt Milly’s items will be shared; if there is a Will, this document will determine the distribution, if there is no Will, then the courts will decide.

This article was actually prompted by a personal experience of regularly visiting a Great Uncle over a period of many years and during every visit being told that a certain family heirloom was to be passed down to me. Even if he really wanted this to happen and even if he told his main beneficiary that this should happen, it was not written into the Will and I never saw this family heirloom; it was sold off. This can come as a surprise to a person who has been told a hundred times that a certain heirloom will be coming their way.

So verbal legacies count for very little in the world of estate planning. The only thing that matters is a signed, witnessed, Last Will and Testament. Do not rely on promises made over the years and do not assume that an estate can be sorted out amicably without a Will. There is never an advantage to not preparing a Will, and verbal commitments mean nothing.