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.

“Fortunately I don’t need a Will yet!”

This was a comment left on our Facebook page recently; “fortunately, I don’t need a Will yet”. Which is somewhat akin to saying I’m not putting my seat belt on because I don’t need one yet. Technically it is correct of course; you don’t need a Will until after you die. The problem is, that it’s just a fraction too late to think about putting one together at that point. Fortunately, there’s no restriction on how far in advance you can write your Will, in fact, today would be a really good time.

With 70% of adults not having a Will in place, it’s clear that many people are adopting the approach of planning to write a Will just before they die, and the associated assumption is that they will die when they are old….probably years from now. However there are a few very serious issues with taking this approach;

  • Most of us are not given due warning when we are about to die. Accidents happen, and it’s just wishful thinking to assume that we will all have the time to sit and write a Will a month or so before we pass away.
  • Moreover, at the time when we know that we are about to pass away, we may not have the capacity nor the facilities to write a Will. If you are planning to use a lawyer to prepare your Will you will either have to book an appointment or ask the lawyer to visit you. If you are planning to prepare your own, you may need a computer, printer, witnesses and the instruments that are at hand now, but may not be in your last few weeks.
  • Most importantly though, a Will written on one’s deathbed is more likely to be challenged because it was not prepared with a rational lucid mind. Knowing that you are close to death may have an impact on your ability to think straight, and that’s not even taking into account any medications that you may be on at that stage. You have to be capable of making sound judgements when preparing your Will. In fact, you must have the mental capacity that you have right now.

This is why it makes sense to prepare your Will now rather than waiting for this imaginary day in the future when you become more sensitive to your mortality.

The other mistake that people often make is to wait until they have stability in their life. We often hear things like “I’m not going to prepare my Will now because we’re planning to start a family next year”. There is no benefit to waiting until life has a perceived stasis. In fact, when you use a service like the one at LegalWills you can make unlimited updates to your documents at any time. When a change occurs in your life, you can just login, make the change to your document and create a brand new Will. If you wait until your circumstances will not change, then your Will is likely to never be written.

There is really no advantage to procrastinating, and many disadvantages. As the proverb says “the best time to plant a tree is 20 years ago, the second best time is now”.