Respected author and Advocate David Meyerowitz remarked that “It has been said that the other bank of the River Styx is lined with the shades of dissatisfied testators waiting to receive the judicial personages who have misconstrued their wills”.
When you had your Will drafted, or last had it updated, did you check to make sure that its contents accurately conveyed your last wishes? Did it accurately communicate how you wanted your estate administered?
This is a question asked by David Knott, of Private Client Trust, the fiduciary pillar of Private Client Holdings, who says that all too often a Will is created by a client filling out a form on the back of an application for a funeral policy, loan or some other service. “This form is then handed to the service provider clerk who may be skilled in funeral policies, loan applications or suchlike but who rarely understands the impact of those instructions. This form is then delivered to a “Wills drafting factory” where the final Will is churned out – hopefully correctly interpreted. The formally drafted document is then returned to the client who signs without question, believing the document to be sound.”
“Such an approach to a Will may lead to a spate of unintended and often unpleasant, consequences upon the death of the testator,” warns Knott.
“A Will should only be drafted by a skilled fiduciary specialist after a face to face interrogation of the potential testator. Their wishes may be impractical or costly to implement and depending on how the testator is married, may be impossible to fulfill. The fiduciary specialist will also no doubt bring up other matters not considered by the testator.”
Knott advises that the person who drafts a Will must be fully informed on a range of laws pertaining to everything from income tax, to estate duty, capital gains tax, property law, marriage regimes, and foreign jurisdictions – among others. “The specialist who drafts a Will must ask the correct probing questions to ascertain the nature of the estate, the financial maturity of beneficiaries, what the liquidity would be, and to provide for whatever estate duty or capital gains taxes savings could be taken advantage of. The drafts person must then provide a clear, concise document which states – without ambiguity – exactly what the intentions are. The testator must also know and fully understand exactly what the Will delivers.”
“Ideally the fiduciary specialist should also have experience in the administration of deceased estates as it is only at this stage that the unintended consequences emerge. To have experience in what instructions cannot work is crucial!”
It is clear that your Will is the most important document you will ever sign, after your ante nuptial contract. Knott says that it is therefore vital that you seek professional advice with the drafting. “Once signed, whenever there is a change of circumstances the Will needs to be reviewed to recognise those changes. A paint by numbers’ Will just does not suffice.”