WillsBehind the Will: Essential Documents to Review Part 1

Taking instructions for a will involves more than simply recording a client’s wishes. It requires a thorough review of the client’s circumstances and identifying any documents that may potentially disrupt the client’s wishes. A will is only as effective as the information that informs it, and overlooking a key document could unravel even the most carefully drafted will.

Over the next few weeks, this series will outline the essential will planning documents that should be reviewed when taking instructions for a will. Whilst the range of documents outlined in this series may seem extensive, it is important to remember that not all will be relevant in every case.

This first article will deal with documents relating to the client’s personal relationships.

Previous Wills

A client’s previous wills provide valuable insight into their testamentary intentions and any changes in their personal or financial circumstances.

Reviewing earlier wills helps to identify any large-scale changes in the client’s intentions. These changes should be discussed further. The removal of previously included beneficiaries could lead to potential disputes. The client should be advised of this risk, and you may want to take additional steps due to combat that risk, such as advising a professional capacity assessment.

A previous will may also be a mutual will, which could impact the client’s ability to make a new will. Mutual wills are a specific form of arrangement. They are made by two or more people, but most often between spouses and partners. Under this arrangement, they will agree to make wills in similar or identical terms and, crucially, agree that they cannot revoke or alter the will without the other’s consent. After the first testator dies, the survivor is generally prevented from departing from the mutual will’s arrangement in whole or in part (see our previous article on mutual wills for more information).

The content of a previous will may raise points of discussion with the client that they might not otherwise raise themselves. For example, it may include a revocation clause referencing a foreign will that the client has not otherwise disclosed.

Decree Absolute and Consent Orders

A decree absolute is the legal document that confirms the dissolution of a marriage. Consent orders set out the financial arrangements agreed upon during divorce proceedings. Consent orders, in particular, should be reviewed, as they may contain provisions relevant to the drafting of a will.

A consent order may include a “section 15 bar.” Under section 15 of the Inheritance (Provision for Family and Dependants) Act 1975, a consent order may prevent a former spouse from making a claim against the deceased’s estate. A similar provision is in S15ZA for civil partners.

A consent order may also provide a former spouse with an interest in a property owned by the client or include ongoing financial obligations to a former spouse which, in the event of death, could stengthen a claim made by the former spouse under the Inheritance (Provision for Family and Dependants) Act 1975.

Although rare, consent orders may impose requirements on the parties’ testamentary freedom, for example, by requiring certain provision is made to joint children.

Example:

It could be the case that a property is registered in the client’s sole name at the Land Registry, but the consent order provides the former spouse with an equitable interest in the property. Awareness of this may impact the advice provided to the client.

Pre-Nuptial and Post-Nuptial Agreements

Pre-nuptial and post-nuptial agreements set out how assets should be divided in the event of a relationship breakdown. While not strictly binding, the courts increasingly give weight to these agreements (see Radmacher v Granatino [2010] UKSC 42), provided both parties entered into the agreement freely and with full appreciation of its implications.

These agreements include provisions on disposing of assets in their wills. They may also indicate the client’s intentions regarding the division of assets, which may impact the drafting of the will. Breach may give rise to a claim against the estate.

Where this applies, the agreement may be enforceable as a contract, potentially giving rise to a claim for damages against the estate if breached.

Example:
A pre-nuptial agreement may specify that the client should leave a specified sum or asset to their spouse in the event of death whilst they are married, which should be taken into account when drafting the will.

Conclusion

These essential will planning documents can have a profound impact on testamentary freedom. By taking a thorough approach to all relevant documents, estate planners can ensure that the client’s wishes are fully protected. This process also provides vital risk management to reduce the likelihood of future disputes.

In the next article in this series, we’ll turn our attention to documents relating to the client’s finances and property. This is another crucial area where overlooked details can have lasting consequences.

 

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