Freedom of Choice

Our society guards jealously individual rights and the making of a Will is the exercise of just one such right. Where no Will exists a person’s estate on their death is dealt with in terms of the laws of intestacy. Those laws set down a frame work which reduces the options for close family members and friends surviving the deceased and also disregards any preference or choice the deceased may have made during life.

Laws of Intestacy

An individual who does not make a Will is leaving the succession to his estate to devolve in accordance with the provisions of the succession (Scotland) Act 1964 as amended. This law has developed over time and as such a number of misconceptions have arisen. For example it is a commonly held belief that when one spouse dies without leaving a Will the surviving spouse automatically succeeds to the whole estate of the predecessor. This is not necessarily the case and if a person wishes to make such a direction a Will is vital. 

The terms of the Family Law (Scotland) Act 2006 further complicates the position for unmarried persons who live in a committed, cohabiting relationship, regardless of gender. Although the legislation provides a route by which a surviving cohabiting partner can apply for a capital sum payment from a deceased partner’s estate such applications by necessity rely on an adversarial court process which can identify unintentional conflicts and require significant expense to be incurred by both the estate and the surviving partner.

The age at which children become entitled to payment of any benefit from a deceased’s estate it is commonly believed to be 18 or even 21 years of age. If a person has a specific concern in respect of the age at which his/her children should become entitled to payment from his/her estate then again a Will is an important first step.

Choice of Executors or Trustees

Whether a person’s estate is dealt with in terms of their own Will or in terms of the laws of intestacy an executor will be required in administration and winding up of the estate. By giving appropriate consideration to who this person should be during life not only afford some assurance that an appropriate and trustworthy individual is identified but also that close family members will not be passed this unexpectedly in the difficult circumstances of the person’s death.

Range of Benaficaries 

Is it possible to identify a wide range of individuals or concerns to benefit from the person’s estate. For example if the person is unmarried and has no issue then that person could choose to bestow benefits on old friends and indeed upon a range of charities the client favours, or with whom the client may have had some relationship during his or her lifetime. 

Financial Provision Protection

By making a Will a person also has a choice as to when and how their chosen beneficiaries will be entitled to receive payment. A Will can therefore be constructed so as to provide specific formulae for the financial protection of a young or financially naive beneficiary or beneficiaries suffering from mental incapacity. 

Tax Planning

Without appropriate planning and a properly constructed Will a client’s estate might other wise be liable to inheritance tax. Great increases in property values over the past few years have moved many individuals to a position where their estates would exceed nil rate band of inheritance tax. For a more detailed discussion on the possible implications of inheritance tax and other tax planning consideration it is appropriate to arrange a formal meeting at which details of the full value of the client’s estate should be available. 

Non-Beneficial Provisions

Non-Beneficial Provisions may include funeral directions or even record a wish to have a body donated for scientific or medical research. By recording such an intention in the Will a testator may help to avoid disputes and arguments which can arise amongst close relations following a person’s death.

Last Statement

A Will can also be the last statement of love, respect and affection, which a person has for members of his or her family or others. It is a lasting testament of such feeling and is an entirely valid use of the Will. Although such provisions have obviously no legal implications and it may seem odd to consider such sentiments alongside the more

clinical review of a person’s financial position expressions of such feelings are entirely appropriate and may be of some comfort to a deceased relative at the time of that  person’s passing.