Informal Wills on the Way?

We have written on numerous occasions of the danger of either failing to leave a will or of not taking professional advice when making your will.

Among the difficulties that can arise with DIY wills are challenges by family members who have been excluded from benefit, a failure by the person making the will to be sufficiently precise regarding the identities of beneficiaries – for example when leaving bequests to charities, or provisions that create unforeseen tax issues. Many more problems can occur and, in part, that is because of the strict rules that apply in the UK regarding what does and what does not constitute a valid will.

On the other hand, there have been many instances in which the clear expression of a deceased person’s final wishes has been stymied by the presence of a binding earlier will because these were not included in a new will or a codicil to an existing will.

However, following a recent consultation exercise, the Law Commission has proposed that the courts should be given a ‘dispensing power’ enabling them to order the distribution of an estate when there is a clear expressed intention by the deceased…examples of which may include emails or video recordings.

Whilst this proposal seems like a good idea and would be welcome where there is no potential source of contention, it is easy to anticipate where and how disputes could arise. In particular, there may well be instances where an expressed ‘last wish’ ends up creating a dispute or unforeseen tax consequences. In particular, some charities are likely to take a contentious stance if they have been included in an earlier will and find themselves excluded by a change in intention at the eleventh hour.