Does COVID-19 mean I should be updating my will, or making a will if I don’t have one?
These are anxious times, with each of us facing our own particular mix of worries: worries for ourselves, our families and those we care for, and also worries for our business or employment. At present some of us are hustling to be able to continue as well as we can, to make our contribution to the life of the community and to the economy, and to get important matters completed where they can be. Some may already find themselves with too much time on their hands, while others face the reverse concern of how to cope successfully with closer and more prolonged family contact than they have ever had before. All of us feel plain bewilderment at the speed with which the situation is changing.
Whatever their particular circumstances, many of our clients are saying to us that it gives them calmness and reassurance to know that, should the worst happen, their affairs are in order. Having an up to date will is like taking an umbrella out on a cloudy day: you hope never to use it, but it’s good to know it’s there. And having a lasting power of attorney for health decisions means that they know that if they are not able to make critical decisions about their care, those decisions will be taken by a trusted person they have chosen.
If you don’t have a will, do you need one?
If you don’t currently have a will (that is, you are ‘intestate’), you should not assume that the division of your property, that would happen under the general law, will be anything like what you would want. One size fits almost no one.
For example, the amount of property passing to a spouse or civil partner may well be less – or more – than they would need or you would want.
Similarly, provision for any young children may be far from ideal – under the general law they would have immediate access to the whole of their capital at the age of 18, which many consider far too young. Without a will, you may have failed to appoint legal guardians for them.
Long term relationships are often referred to as a ‘common law marriage’, but there is no such thing in law. A partner who is not married or in a civil partnership may be left woefully unprovided for the widespread misconception that they would be entitled to the same share as a spouse or civil partner is wrong.
You would also miss out on the chance to make dispositions that are efficient for inheritance tax purposes, so more tax might have to be paid than was necessary.
If you do have a will, is it out of date?
We generally advise clients that their will should be reviewed every five years or so: a will can become out of date in ways that they may not be aware of – perhaps because of a change in the relevant tax rules, for example.
You should, however, also initiate a review of your will if family circumstances change in a significant way – the birth of children or grandchildren for example, or the marriage or divorce of a child. (The marriage of the person who has made the will completely revokes it under English law, and a new will should be made as soon as it is clear that the marriage is breaking down, without waiting for the divorce to go through).
A will also needs review if the value of the assets changes significantly – either the total value, or the value of particular elements. The turmoil in the markets at the moment makes this unusually likely. The way in which the total assets are shared will have been carefully crafted and if the relative values change significantly then an important beneficiary may find themselves with far less than was intended, or even with nothing.
How can my will be witnessed if I am self-isolating?
This is a very important practical issue at the moment. A will is only valid if strict rules about the signing procedure have been followed and social distancing and self-isolation make these far from straightforward to follow. One requirement is that the signature must be witnessed by two independent witnesses, both present at the time of signing. At the moment there is absolutely no sign that the law will be relaxed because of the current crisis. If you instruct us to prepare a will, one of our first steps will be to evaluate your particular facts against the full legal requirements for signing, to assist you in finding a way to achieve this.
Do you have a lasting power of attorney (LPA)?
There are two types of LPA, one for financial matters and one for health decisions. Many people make an LPA when they make a will, but it is not usual for individuals to decide only to have the financial power. We find that some of these are now reassessing whether they should have a power for health decisions too.
If you would like our help in updating your will, making a first will, or making an LPA, please get in touch with your usual BDB Pitmans contact, or else the following partners:
London office: Alastair Collett
Reading office: Sheilagh Magee
Southampton office: Emily Taylor