Overview
People often put off writing a will until something triggers it, perhaps getting older or facing an illness. But dying without a will, especially unexpectedly, can leave devastating effects on the families left behind who then have to try to sort out the estate themselves.In this episode, solicitor Austin Lafferty explains the process of drafting a will and what sorts of things to include, from who should benefit to specific requests such as scattering of ashes or who should receive a prized possession such as jewellery or a model aeroplane collection.
He talks about how to provide for blended families and dispels many of the myths that people have, such as the assumption that a spouse will just inherit everything or that people don’t have enough to make it worthwhile even drafting a will. He talks about the risks of diy wills and why you shouldn’t save your wishes on your phone. Costs are also discussed, and ways of saving money through charity schemes such as Will Aid, as well as what to do if you have property abroad. Finally he gives his top tips for drafting a will and the relief felt when having a will in place.
Meet the contributors
Austin Lafferty
Consultant Solicitor
Austin is married and has two adult children – one of whom is a solicitor in London. He has run many road races including several marathons, the most recent being London 2015, and has raised tens of thousands of pounds for various charities. His main sport is karate – he is now a fourth Dan black belt. Austin has also worked for many years as a professional artist, specialising in drawn and painted portraits – both human and animal!
Sarah Roberts
Trainee Solicitor
Before becoming a freelance producer , Angela has had a long and varied career at the BBC – first as a radio producer on live topical phone in shows on BBC Radio Scotland and Radio 5 Live where she met and worked with Austin, before producing radio features for BBC Radio Scotland and Radio 4. She then moved to Digital Learning at BBC Scotland working on a number of campaigns such as A History of the World in 100 Objects, Commonwealth Class and BBC News School Report. Latterly Angela led Authors Live, a partnership project with Scottish Book Trust, producing live TV events on iplayer featuring children’s authors.
Transcript
Angela - Hello, and welcome to It's The Law. Today, I've got consultant solicitor Austin Lafferty. We're going to be looking at what's often seen as quite a morbid topic.
Wouldn't you agree, writing a will?
Austin - I would agree if I were a member of the general public, or one of our many thousands of clients, but as a solicitor doing this for 45 years, no, I think it's a very practical thing, and I wish everybody would consider it.
Angela - Would you say it's maybe taking 10 minutes to do this could actually be the best decision you've ever made?
Austin - It could be, not necessarily for you, because it only comes into being when you have died, but it can save a lot of heartache, bother, cost, if you do it in good time, for your family.
Angela - Before we get into the nitty gritty of all of this, could we just bust a few myths, and I would like some quick yes or no answers, and we can talk about it further. So first of all, is writing a will just for people who are retiring?
No, we none of us know what's going to happen tomorrow. You could walk out of the door and be hit by a bus and die. And the old saying, we're all worth more dead than alive is true.
Because if you are insured, you're 25, you took out an insurance policy when you started work. You don't own property. You don't have much in the way of savings, but you've got this insurance policy for 50,000 pounds.
You die. 50,000 pounds is your estate. It's a legal estate and somebody needs to deal with it.
If you've not made a will, then your closest relatives have to scramble about to get court orders and a bond of caution, as it's called, and go through a lot more legal hoops. And then do you know how it's going to be divided up amongst your family? If you've not taken legal advice or made a will, then you are stuck with the Scottish legal statutory scheme of division.”
“And it may mean that people that you want to get some of it can't get it. So that very long answer to a quick no is only a tiny portion of why it is pretty much essential for any adult person to make a will.
Angela: So you can never be too young to write a will?
Austin - No. In fact, strictly speaking, even a child, you could have that done for you because if you inherit money from maybe parents who died prematurely and you're underage, then there's various legal steps that can be taken to look after your estate, but it's your estate. But anyway, once you're 16 in Scotland, you really can make a will under your own steam.
Now, 16 may practically be too early, but as soon as you start working or you have any savings, or you have any property, or once you've bought a car, what's going to happen to your car if you were suddenly to die? So the younger you are, the more you should start to think about it.”
Angela - “I actually was thinking of someone who is very young, but has just got a baby. But they said to me, oh, I don't have anything.
Austin Everybody says this. And the number of clients that come in to see me, and it's maybe the first time they've ever seen a solicitor, and they've come in for a will because something has triggered it, you know, a relative has died, or somebody has suggested it down at the, you know, golf club or the tennis or at work. And they come in, they say, I really don't know what I'm doing here.
I don't have enough to make it worthwhile. Absolutely wrong. Even if you've got bank accounts with a couple of thousand pounds in it, which is nothing these days, you've got a flat where although there's a mortgage on it, it's gone up in value since you bought it.
And the equity in that, you know, already we're beginning to see an estate that cannot just be informally dealt with. Another thing is the bank, if you've got more than a certain amount in the bank, then it's no good for your sister or brother or even spouse to go along to the bank and say, such and such has died. Here's the death certificate give me the money. They'll say, no, no, no. We want, and they always use the word probate - in Scotland It's called confirmation, but it's the same thing. They will say, did they make a will? Let's see the will and let's see the confirmation granted on that will in order to release the money to, into the estate.
No matter how little you think you have, a, you will almost certainly have more when you die than you think. But secondly, let's not forget. I used to, this shows you how old I am, I used to say as a kind of joke to clients.
Now, lawyers are not known for jokes, but clients used to come in and say that thing, I don't have enough to make it worthwhile. And I would say, what if you win the pools and die from the shock? That then became, what if you win the lottery and die from the shock?
And that is meant in a lighthearted way to say, given that you make the will today, we sign it up today, and you don't die for 40 years, then in 40 years’ time, who knows what you're going to have? You may have a business empire that's worth millions, but more likely you'll have a house, and you've got some investments or something and you've inherited money from that elderly aunt that died 20 years from now. So if you are going to say, it's not worth my while making a will, then you're betting against the house rather than betting on the chances of what really will likely happen.
So although the law is not that people must make a will, if they don't, they are taking a huge risk that there's going to be terrible legal complexities and unhappiness and even anger, because in death, that's when you see both the best and the worst of families.
Angela - What about if I'm married? Would my spouse not just inherit everything anyway?
Austin - No, I'm glad you've asked me that, Angela, because that is the other kind of myth that I hear all the time. The Scottish Law of Intestacy is a kind of complicated thing, and by intestacy, I just mean dying without a will. And our law goes back actually hundreds of years, but the main thing is the 1964 Succession Scotland Act.
Now, it's been updated a few times since then, but broadly what that does is it says, if you die without a will, and let's say you've got house and you've got savings, your spouse will get the first chunk of things. They will likely get your half of the house if it's in joint names. They will get a fixed sum, but after that, they have to share the estate with any children that there are.
Indeed, if there aren't children, but your parents are still alive, then your spouse is to share the estate with the parents. Now, this is a can of worms which can legally be sorted almost instantaneously by making a will, where you can then dictate who is to get what. Now, children will always have a share of the money side of the estate.”
That's called their legal rights, and you cannot will that away. But everything else, including the house, you can will to a surviving spouse. And when you have people who are married or in a civil partnership, the law protects them in exactly the same way.
If you make a will, you can dictate who is to get the vast majority of your property. If you don't make a will, then it falls to be decided by the law, and that can lead to terrible unintended consequences.
Angela - Right. I think we should talk about what exactly is a will.
Austin - Right. A will is a documentary…. I'm going to use the word deed.
It's not a title Deed, but it is a formal legal instrument, the technical word, where what is written down or typed is a statement of what you want to happen to your estate after you die. There's usually three main parts to it. One part is appointing executors.”
Angela - That's what I was going to ask as well. What is an executor?
Austing - Yeah. Executor is just almost a kind of agent, a manager of the estate. They can be a beneficiary.
You can appoint your husband or wife as executor as well as being a beneficiary. If you don't have immediate family, you can appoint the likes of your solicitor or a family friend or your accountant, or even, I guess, your religious minister. All these things, it's a choice you make, somebody that you know and trust and that is capable of seeing the estate through to being wound up and distributed. Now, that's not to say they need to do it themselves. Normally, they would go and see a lawyer.
Solicitors are the kind of engine room of estates once somebody dies. They know all the ins and outs, all the paperwork and so forth. So that's the first thing in the will is appointing executors.
The second thing is any specific bequests. And by that, I mean churches, charities, cat and dog homes. If you want to leave your jewellery to your eldest daughter or, in fact, one person that came in to make a will many years ago, his hobby, his passion was model aeroplanes.You know, the kind that fly with little engines, and he was part of a model flying club. And he left his collection of model aeroplanes to that club. Now, that collection of model aeroplanes was worth thousands of pounds.
And nobody else would have wanted them. The executor would have been stuck with trying to sell them in order to get the money in. And it was a neat way for this chap to recognize and” “thank his colleagues in the club and also solve the problem of what to do with these rather kind of exotic aeroplanes.
But that specific bequest, it can be money, it can be items, it can be anything. And of course, if you have a charity that you want to leave things to, if you don't specify them and say who they are and what they have to get, they won't get anything. So that's the second thing.
And the third thing is what we call the residue. Now residue makes it sound as if it's a bit leftover. In law, it's whatever is left after debts have been paid, after any specific requests are paid, whatever is left over is what we call the residue, and that is to be accounted for.
And if somebody dies with a husband or wife or a partner, then they might leave the whole residue to that husband, wife or partner, or they might say, well, they've got enough, I'm going to look to the next generation, the children will share it equally. And in the event that one of the children, God forbid, has died before I have, then their children, so my grandchildren will take their share. The residue, the way to draw that up is a very important element of the will and is a huge discussion to have in the Solicitor's Office, indeed within the family.If you've got that kind of family where you can talk about death and succession and inheritance and money, then once you've signed off on the will, who's to get what, that's it's important that it works as a formula. And the very final thing, I'll say very final thing, you can add in either comments, and I've seen this often enough, I've put it in for people often enough, saying, I'm leaving 100 pounds to my friend. You can add those things in.You can also say, I want my funeral to be in such and such a church, and I want my ashes to be scattered over Arran or all sorts of stuff. But the very, very final thing is, it's got to be signed. Best witnessed as well, but it's got to be signed to make it legally valid. And sorry that was a whistle stop tour of what's in a will.
Angela - You do see those will writing packs”You know, you get will writing webinars and all of this. So could you actually just do it yourself?
Austin - Yes, you could. And again, there's no law that says you must see a solicitor or it must be certified or notarized or anything like that. At heart, it's a deeply personal document. And if you feel that you want to do it yourself and feel able to do it yourself, then do so. But, and it's a very big but, if you get it wrong, then that will may not be able to be used in the winding up of your estate. If it's invalid because of some technical reason, the courts will give a certain amount of latitude, particularly if somebody has done it themselves and not with a solicitor. But they won't cure a fundamental defect. And one of the fundamental defects can be that it's not signed. And I've seen this. People write out a beautiful thing in either in script or they print it, they type it on their computer and print it off.
Angela - Or you put it on your phone. You save it in your phone.
Austin - Yeah, yeah, don't get me started on that.
Angela =- Don't do that then….
Austin – Don’t do any of that. And do you know, a lot of solicitors will give a first free interview, a first free consultation, make use of that and go along and say, look, I'm thinking about making a will.I don't want to incur costs just now. I don't necessarily want to involve a solicitor. I just want some advice on how to make a will.
And if solicitors offer a free consultation, then they'll tell you. I will tell you exactly what you need to know, and you can go away and think about it. But fundamentally, if you write a document that says, I, Austin Lafferty, wish to leave all of my estate to my wife, and give a name or to my children, and then sign it, that's it boiled right down.
Okay, I've talked about appointing executors, but if you don't appoint an executor, the law allows beneficiaries to go to court. Now, there's more work in it and more cost, but beneficiaries can go to court and to get appointed executor. So, if you really, really stripped it down, if somebody writes one line saying, I leave all my worldly goods to X and then signs it, that's the essence of a will.
But for the sake of a very small investment, to get it all singing and dancing takes the risk out of it. It reduces the cost. And actually, an investment of 200, 300 pounds, whatever a solicitor charges, your estate will save much more than that when your estate is being wound up after you die because of the small investment that you've made there.
Angela - And what about, you know, you often think, well, you leave it to your spouse, but so many people are not married these days. So does that make it even more important that you should think about your partner?
Austin - Yes, in two ways. One, exactly along the lines of what you've said there, because if you are informal partners and you live together, particularly, say, if it's, you know, your house that you bought and your partner came along years later and you got together and you've had a lovely relationship and a life together, but you've never formalized either the relationship or taken the other legal steps that would mean you don't need to do that because making a will, be putting title deeds and joint names etc. But there's a much worse reason than that. And I've had this on several occasions. Indeed, if you've got a couple who are married and they separate, but they don't ever get divorced, but they never see each other again, and they're separate for, you know, X number of years and they've not made wills. So they're still married and one of them dies, then they're still married.
And the other one… Now, the law is developing in this, and it's a loophole that has been identified, not least by lots of solicitors that have seen it. But if you get separated but not divorced, then you still have a spouse kicking around. And if you die, then for your family who are left to pick up the pieces under the intestacy law that I'm talking about, then they have got to account for that separated spouse because technically they're still your husband or wife.
Angela - okay, I've heard about the reading of a will. Is that just in films and on TV?
Austin - Yes, it really is just in films and TV. And it's a great scene in any dramas or films because you see everyone's reaction when they get the surprising news that Aunt Agatha has left everything to the cat and dog home and not to them. But the executor's role starts the moment you die. So if the executor decides that it's going to be done in a particular way, including a reading of the will, that's fine. There's a secondary question there, which is people who are in the family say, oh, I want to see that will. And again, the executor is the person who decides whether anybody else gets to see the will. Now, that's a temporary thing, because after the will has gone through the court procedures, the will is lodged at court and becomes, in effect, a public document, so people can not just go along, rock up and say, I want to see a few wills. But if they contact the Sheriff Clerk at the Sheriff Court, where the confirmation has been processed, they will get to see the will. And indeed, a note of what was included in the estate.But that's part of a bigger question, which is, can the family overturn the will? The family cannot overturn the will. The only way a will can be challenged is if there is real evidence that when the person made the will or signed the will, they weren't competent either, they were madly drunk, which is unusual coming into Solicitor's office and being allowed to sign a will, madly drunk, or losing their faculties.
And interestingly, although solicitors are not medically qualified, we have an entitlement and indeed a duty to assess every client that comes in. And if we think that they are, you know, just saying what somebody's telling them to say, or they are being influenced one way or another, or they really don't understand, then we are entitled either to say, no, I'm not proceeding with this. And if you're in, continue to be in doubt, then you can get a medical certificate to say, yes, they understand what they're doing, and then you can proceed. And that's really the solicitor looking out for the client, but also looking out for myself, I don't want to be sued by the family who said, I was part of a conspiracy to pockle the money.
Angela - I mean, I'm guessing it can be often a source of conflict, is it?
Austin - Yes, but actually, if you are able to talk to family, or those close to you in a sensible way, and this doesn't mean telling them everything, or you know, giving away all your secrets, or bending to their will. And if you can, and if they know what to expect when you do die, then that can take a lot of the heat out of the situation.
Angela - What about then if some grandchildren are benefiting, as opposed to maybe other siblings? Is there a sort of minimum age that you can benefit?
Austin - No, you can give money to anybody. Indeed, you can even give money potentially to a child that's not been born, but that's a kind of specialized one. And you say, right, I'm going to leave £1,000 to each of my grandchildren, either born and living at the time of my death or in utero, which is a nice bit of Latin, meaning if one of your children is expecting another child that's not been born by the time you die, then that newborn baby, when they do get born, doesn't lose out on the £1,000 because they were born after you died.
And indeed, coming back to the question of time scales, if you leave money to very young children, then clearly they're too young to either own it or use it for anything or be responsible for it. What you do is you either appoint your executor or maybe the parents of those young children to look after the money until they're 18 or 21. And you write all that into the will, you say that money is to be kept and invested for the grandchildren until each of them reaches the age of whatever it is, and the maximum age is 25 for that kind of thing.
And can be, if necessary, used for their education or benefit as they're growing up. But what you do is you leave a sort of mini trust in the will, which specifies what you're going to give to any grandchildren and how it's to be applied and who's to look after it.
Angela - Just a couple more questions. What if someone has a family home abroad? Do they need to get a foreign will or does it apply?
Austin - Yes. Well, the quick answer is they should take advice from the solicitors or abogado or whatever it is abroad that in the jurisdiction of where the property is. In Spain, I'm not a Spanish lawyer, but I've got a lot of clients who have Spanish properties, and the advice they get is you must make a Spanish will, because if not, Spain is still what they call a feudal system of property ownership, and there are traps for the unwary if you don't get full Spanish legal advice and a Spanish will.Now, the Spanish will and the Scottish will can interact with each other, because what I tend to do at the end of, as a final line, it says, I revoke all prior testamentary writings, which just means if anybody turns up with an older will, it's cancelled, apart from any overseas will. It means that if it's a Spanish will, it doesn't cancel the Scottish will, and the Scottish will doesn't cancel the Spanish will. They sit in parallel.
I'm pretty familiar with Spain. I, funnily enough, had a couple of clients with Italian property recently, and that's much more complicated. And the advice that I've seen from Italian or Italian qualified lawyers is that as long as the Scottish will mentions the Italian property, and after the death, you get an Italian translation of the Scottish will, then that will be enough for the Italian authorities.
But I'm still investigating that. And the moral of the story is this, don't assume anything. If you have property abroad in any jurisdiction, United States, Canada, Italy, Spain, Croatia, get advice from over there, and make sure that the way your Scottish will is written, it does not take precedence over any other will in respect of property overseas.
Angela - That does sound like another topic for another day. Finally, how much does it cost? You mentioned it wasn't that much, but how much roughly could you expect to pay?
Austi - I think that for a solicitor to sit down with you, go through everything properly and create a will, which he or she would then discuss with you, rather than present you with something just to sign. There's a lot of time involved in that, a lot of expertise as well, and the client's time too. I wouldn't like to think of a will as costing anything less than 200, 250 pounds, plus the dreaded VAT, which solicitors have to charge. But, but, but, there are various schemes that are available for charitable will instruction. I'm going to mention just three of them, but, you know, Google it. Ask your solicitor which scheme or schemes he or she or the firm that they're in are involved in.
Will aid is one, and what happens is you go along, you get the will made, you don't pay a fee to your solicitor, but you make a donation, and that donation goes in full to Will aid. And the solicitors that are involved in that give up their time and expertise specifically for that donation. The second one is Will Relief Scotland, which is just what it says in the tin.
That's in September each year, and you just literally do a similar kind of thing. The third one is one that I like very much, Cancer Research. I've done a number of things, but not just in the law.
In my karate club, we had a press up challenge, and it was 100 press ups a day for a month. We actually ended up getting about 15 grand for that. The whole karate club did it, and it was wonderful. But one of the reasons I have an association with them is that they are associated with law firms. And the idea is that you will be encouraged, and your solicitor will be encouraged to encourage you to make a donation. Perhaps leave a small sliver of your estate to cancer research or a monetary donation, but it's a way of increasing their funds and their work and also awareness generally.
But that's it. And if you have a very complicated estate, maybe you have a business, maybe you have, you know, a blended family with all sorts of considerations about your ex owning, you know, jointly owning property with your ex, the fee might be more for that kind of will. So I don't want to be too restrictive, but for a small investment of a few hundred pounds, you can get the reassurance of having something that is robust and that will either satisfy the needs, the legal needs of your estate if you die tomorrow, or if you die in 60 years' time.
Angela - Finally, finally.
Austin - final, final, yes.
Angela - I think I said finally before
Austin - .It's all right.I forgive you.
Angela – I want you to give me some top tips on writing a will. So imagine that you're going in the elevator and you're going up to the fifth floor. I want five tips on writing a will.
Austin - Okay. One is to get an old-fashioned sheet of A4 or a notebook or something and write down what you think the will... Even if you've never seen a will or know anything about it, write down what you think it should have in it.
The next thing is, ask friends and family who their solicitor is. Find out what firms or if that firm or any other firms do this first free consultation. Work out your questions in advance and that may be the same as what's on your notebook or sheet of A4.
Find a time when it suits you and your mind is clear and you're not under a lot of pressure to go in and have that consultation with the solicitors so that it's a day when you are ready to think about it. And even if you're unsure and you've never been to see a solicitor before, well, be reassured because we're just like going to the doctor or the dentist or whoever, you know, we're friendly people and we understand the, you know, the unfamiliarity of it. But if you need to take somebody in with you, take somebody in with you, and the solicitor will be perfectly happy with that. It's sort of a moral support. But I think you'll find very quickly that you don't need that person, and the moral support comes from the solicitor. So I don't know if that's five things, but I think it boils down to this.
Get in your mind that sadly, we are all going to die. We're all in a waiting list, and we just don't know where in that waiting list we are. A number could be called at any time.
Think of how your death would affect everybody around about you, not just emotionally or the loss that they would sustain. How would it play out legally, financially, property-wise? Just make the decision in your mind, I do need to make a will.
So having made that decision, all of the other things we've talked about can quite easily snap into place. And you will find, I'm sure you will find, because everyone tells me this, once you've been through it and you've signed it, and the solicitor has said, right, we'll put, we’ll will store that away, and there's a copy of it, you'll feel a huge sense of relief for having done the right thing and done something that's probably been gnawing at you for years. That's Dr. Austin's prescription for making wills.
Angela - So get it on your to-do list as soon as possible.
Austin - Correct.
Angela - Okay, Austin, thanks very much.
Wouldn't you agree, writing a will?
Austin - I would agree if I were a member of the general public, or one of our many thousands of clients, but as a solicitor doing this for 45 years, no, I think it's a very practical thing, and I wish everybody would consider it.
Angela - Would you say it's maybe taking 10 minutes to do this could actually be the best decision you've ever made?
Austin - It could be, not necessarily for you, because it only comes into being when you have died, but it can save a lot of heartache, bother, cost, if you do it in good time, for your family.
Angela - Before we get into the nitty gritty of all of this, could we just bust a few myths, and I would like some quick yes or no answers, and we can talk about it further. So first of all, is writing a will just for people who are retiring?
No, we none of us know what's going to happen tomorrow. You could walk out of the door and be hit by a bus and die. And the old saying, we're all worth more dead than alive is true.
Because if you are insured, you're 25, you took out an insurance policy when you started work. You don't own property. You don't have much in the way of savings, but you've got this insurance policy for 50,000 pounds.
You die. 50,000 pounds is your estate. It's a legal estate and somebody needs to deal with it.
If you've not made a will, then your closest relatives have to scramble about to get court orders and a bond of caution, as it's called, and go through a lot more legal hoops. And then do you know how it's going to be divided up amongst your family? If you've not taken legal advice or made a will, then you are stuck with the Scottish legal statutory scheme of division.”
“And it may mean that people that you want to get some of it can't get it. So that very long answer to a quick no is only a tiny portion of why it is pretty much essential for any adult person to make a will.
Angela: So you can never be too young to write a will?
Austin - No. In fact, strictly speaking, even a child, you could have that done for you because if you inherit money from maybe parents who died prematurely and you're underage, then there's various legal steps that can be taken to look after your estate, but it's your estate. But anyway, once you're 16 in Scotland, you really can make a will under your own steam.
Now, 16 may practically be too early, but as soon as you start working or you have any savings, or you have any property, or once you've bought a car, what's going to happen to your car if you were suddenly to die? So the younger you are, the more you should start to think about it.”
Angela - “I actually was thinking of someone who is very young, but has just got a baby. But they said to me, oh, I don't have anything.
Austin Everybody says this. And the number of clients that come in to see me, and it's maybe the first time they've ever seen a solicitor, and they've come in for a will because something has triggered it, you know, a relative has died, or somebody has suggested it down at the, you know, golf club or the tennis or at work. And they come in, they say, I really don't know what I'm doing here.
I don't have enough to make it worthwhile. Absolutely wrong. Even if you've got bank accounts with a couple of thousand pounds in it, which is nothing these days, you've got a flat where although there's a mortgage on it, it's gone up in value since you bought it.
And the equity in that, you know, already we're beginning to see an estate that cannot just be informally dealt with. Another thing is the bank, if you've got more than a certain amount in the bank, then it's no good for your sister or brother or even spouse to go along to the bank and say, such and such has died. Here's the death certificate give me the money. They'll say, no, no, no. We want, and they always use the word probate - in Scotland It's called confirmation, but it's the same thing. They will say, did they make a will? Let's see the will and let's see the confirmation granted on that will in order to release the money to, into the estate.
No matter how little you think you have, a, you will almost certainly have more when you die than you think. But secondly, let's not forget. I used to, this shows you how old I am, I used to say as a kind of joke to clients.
Now, lawyers are not known for jokes, but clients used to come in and say that thing, I don't have enough to make it worthwhile. And I would say, what if you win the pools and die from the shock? That then became, what if you win the lottery and die from the shock?
And that is meant in a lighthearted way to say, given that you make the will today, we sign it up today, and you don't die for 40 years, then in 40 years’ time, who knows what you're going to have? You may have a business empire that's worth millions, but more likely you'll have a house, and you've got some investments or something and you've inherited money from that elderly aunt that died 20 years from now. So if you are going to say, it's not worth my while making a will, then you're betting against the house rather than betting on the chances of what really will likely happen.
So although the law is not that people must make a will, if they don't, they are taking a huge risk that there's going to be terrible legal complexities and unhappiness and even anger, because in death, that's when you see both the best and the worst of families.
Angela - What about if I'm married? Would my spouse not just inherit everything anyway?
Austin - No, I'm glad you've asked me that, Angela, because that is the other kind of myth that I hear all the time. The Scottish Law of Intestacy is a kind of complicated thing, and by intestacy, I just mean dying without a will. And our law goes back actually hundreds of years, but the main thing is the 1964 Succession Scotland Act.
Now, it's been updated a few times since then, but broadly what that does is it says, if you die without a will, and let's say you've got house and you've got savings, your spouse will get the first chunk of things. They will likely get your half of the house if it's in joint names. They will get a fixed sum, but after that, they have to share the estate with any children that there are.
Indeed, if there aren't children, but your parents are still alive, then your spouse is to share the estate with the parents. Now, this is a can of worms which can legally be sorted almost instantaneously by making a will, where you can then dictate who is to get what. Now, children will always have a share of the money side of the estate.”
That's called their legal rights, and you cannot will that away. But everything else, including the house, you can will to a surviving spouse. And when you have people who are married or in a civil partnership, the law protects them in exactly the same way.
If you make a will, you can dictate who is to get the vast majority of your property. If you don't make a will, then it falls to be decided by the law, and that can lead to terrible unintended consequences.
Angela - Right. I think we should talk about what exactly is a will.
Austin - Right. A will is a documentary…. I'm going to use the word deed.
It's not a title Deed, but it is a formal legal instrument, the technical word, where what is written down or typed is a statement of what you want to happen to your estate after you die. There's usually three main parts to it. One part is appointing executors.”
Angela - That's what I was going to ask as well. What is an executor?
Austing - Yeah. Executor is just almost a kind of agent, a manager of the estate. They can be a beneficiary.
You can appoint your husband or wife as executor as well as being a beneficiary. If you don't have immediate family, you can appoint the likes of your solicitor or a family friend or your accountant, or even, I guess, your religious minister. All these things, it's a choice you make, somebody that you know and trust and that is capable of seeing the estate through to being wound up and distributed. Now, that's not to say they need to do it themselves. Normally, they would go and see a lawyer.
Solicitors are the kind of engine room of estates once somebody dies. They know all the ins and outs, all the paperwork and so forth. So that's the first thing in the will is appointing executors.
The second thing is any specific bequests. And by that, I mean churches, charities, cat and dog homes. If you want to leave your jewellery to your eldest daughter or, in fact, one person that came in to make a will many years ago, his hobby, his passion was model aeroplanes.You know, the kind that fly with little engines, and he was part of a model flying club. And he left his collection of model aeroplanes to that club. Now, that collection of model aeroplanes was worth thousands of pounds.
And nobody else would have wanted them. The executor would have been stuck with trying to sell them in order to get the money in. And it was a neat way for this chap to recognize and” “thank his colleagues in the club and also solve the problem of what to do with these rather kind of exotic aeroplanes.
But that specific bequest, it can be money, it can be items, it can be anything. And of course, if you have a charity that you want to leave things to, if you don't specify them and say who they are and what they have to get, they won't get anything. So that's the second thing.
And the third thing is what we call the residue. Now residue makes it sound as if it's a bit leftover. In law, it's whatever is left after debts have been paid, after any specific requests are paid, whatever is left over is what we call the residue, and that is to be accounted for.
And if somebody dies with a husband or wife or a partner, then they might leave the whole residue to that husband, wife or partner, or they might say, well, they've got enough, I'm going to look to the next generation, the children will share it equally. And in the event that one of the children, God forbid, has died before I have, then their children, so my grandchildren will take their share. The residue, the way to draw that up is a very important element of the will and is a huge discussion to have in the Solicitor's Office, indeed within the family.If you've got that kind of family where you can talk about death and succession and inheritance and money, then once you've signed off on the will, who's to get what, that's it's important that it works as a formula. And the very final thing, I'll say very final thing, you can add in either comments, and I've seen this often enough, I've put it in for people often enough, saying, I'm leaving 100 pounds to my friend. You can add those things in.You can also say, I want my funeral to be in such and such a church, and I want my ashes to be scattered over Arran or all sorts of stuff. But the very, very final thing is, it's got to be signed. Best witnessed as well, but it's got to be signed to make it legally valid. And sorry that was a whistle stop tour of what's in a will.
Angela - You do see those will writing packs”You know, you get will writing webinars and all of this. So could you actually just do it yourself?
Austin - Yes, you could. And again, there's no law that says you must see a solicitor or it must be certified or notarized or anything like that. At heart, it's a deeply personal document. And if you feel that you want to do it yourself and feel able to do it yourself, then do so. But, and it's a very big but, if you get it wrong, then that will may not be able to be used in the winding up of your estate. If it's invalid because of some technical reason, the courts will give a certain amount of latitude, particularly if somebody has done it themselves and not with a solicitor. But they won't cure a fundamental defect. And one of the fundamental defects can be that it's not signed. And I've seen this. People write out a beautiful thing in either in script or they print it, they type it on their computer and print it off.
Angela - Or you put it on your phone. You save it in your phone.
Austin - Yeah, yeah, don't get me started on that.
Angela =- Don't do that then….
Austin – Don’t do any of that. And do you know, a lot of solicitors will give a first free interview, a first free consultation, make use of that and go along and say, look, I'm thinking about making a will.I don't want to incur costs just now. I don't necessarily want to involve a solicitor. I just want some advice on how to make a will.
And if solicitors offer a free consultation, then they'll tell you. I will tell you exactly what you need to know, and you can go away and think about it. But fundamentally, if you write a document that says, I, Austin Lafferty, wish to leave all of my estate to my wife, and give a name or to my children, and then sign it, that's it boiled right down.
Okay, I've talked about appointing executors, but if you don't appoint an executor, the law allows beneficiaries to go to court. Now, there's more work in it and more cost, but beneficiaries can go to court and to get appointed executor. So, if you really, really stripped it down, if somebody writes one line saying, I leave all my worldly goods to X and then signs it, that's the essence of a will.
But for the sake of a very small investment, to get it all singing and dancing takes the risk out of it. It reduces the cost. And actually, an investment of 200, 300 pounds, whatever a solicitor charges, your estate will save much more than that when your estate is being wound up after you die because of the small investment that you've made there.
Angela - And what about, you know, you often think, well, you leave it to your spouse, but so many people are not married these days. So does that make it even more important that you should think about your partner?
Austin - Yes, in two ways. One, exactly along the lines of what you've said there, because if you are informal partners and you live together, particularly, say, if it's, you know, your house that you bought and your partner came along years later and you got together and you've had a lovely relationship and a life together, but you've never formalized either the relationship or taken the other legal steps that would mean you don't need to do that because making a will, be putting title deeds and joint names etc. But there's a much worse reason than that. And I've had this on several occasions. Indeed, if you've got a couple who are married and they separate, but they don't ever get divorced, but they never see each other again, and they're separate for, you know, X number of years and they've not made wills. So they're still married and one of them dies, then they're still married.
And the other one… Now, the law is developing in this, and it's a loophole that has been identified, not least by lots of solicitors that have seen it. But if you get separated but not divorced, then you still have a spouse kicking around. And if you die, then for your family who are left to pick up the pieces under the intestacy law that I'm talking about, then they have got to account for that separated spouse because technically they're still your husband or wife.
Angela - okay, I've heard about the reading of a will. Is that just in films and on TV?
Austin - Yes, it really is just in films and TV. And it's a great scene in any dramas or films because you see everyone's reaction when they get the surprising news that Aunt Agatha has left everything to the cat and dog home and not to them. But the executor's role starts the moment you die. So if the executor decides that it's going to be done in a particular way, including a reading of the will, that's fine. There's a secondary question there, which is people who are in the family say, oh, I want to see that will. And again, the executor is the person who decides whether anybody else gets to see the will. Now, that's a temporary thing, because after the will has gone through the court procedures, the will is lodged at court and becomes, in effect, a public document, so people can not just go along, rock up and say, I want to see a few wills. But if they contact the Sheriff Clerk at the Sheriff Court, where the confirmation has been processed, they will get to see the will. And indeed, a note of what was included in the estate.But that's part of a bigger question, which is, can the family overturn the will? The family cannot overturn the will. The only way a will can be challenged is if there is real evidence that when the person made the will or signed the will, they weren't competent either, they were madly drunk, which is unusual coming into Solicitor's office and being allowed to sign a will, madly drunk, or losing their faculties.
And interestingly, although solicitors are not medically qualified, we have an entitlement and indeed a duty to assess every client that comes in. And if we think that they are, you know, just saying what somebody's telling them to say, or they are being influenced one way or another, or they really don't understand, then we are entitled either to say, no, I'm not proceeding with this. And if you're in, continue to be in doubt, then you can get a medical certificate to say, yes, they understand what they're doing, and then you can proceed. And that's really the solicitor looking out for the client, but also looking out for myself, I don't want to be sued by the family who said, I was part of a conspiracy to pockle the money.
Angela - I mean, I'm guessing it can be often a source of conflict, is it?
Austin - Yes, but actually, if you are able to talk to family, or those close to you in a sensible way, and this doesn't mean telling them everything, or you know, giving away all your secrets, or bending to their will. And if you can, and if they know what to expect when you do die, then that can take a lot of the heat out of the situation.
Angela - What about then if some grandchildren are benefiting, as opposed to maybe other siblings? Is there a sort of minimum age that you can benefit?
Austin - No, you can give money to anybody. Indeed, you can even give money potentially to a child that's not been born, but that's a kind of specialized one. And you say, right, I'm going to leave £1,000 to each of my grandchildren, either born and living at the time of my death or in utero, which is a nice bit of Latin, meaning if one of your children is expecting another child that's not been born by the time you die, then that newborn baby, when they do get born, doesn't lose out on the £1,000 because they were born after you died.
And indeed, coming back to the question of time scales, if you leave money to very young children, then clearly they're too young to either own it or use it for anything or be responsible for it. What you do is you either appoint your executor or maybe the parents of those young children to look after the money until they're 18 or 21. And you write all that into the will, you say that money is to be kept and invested for the grandchildren until each of them reaches the age of whatever it is, and the maximum age is 25 for that kind of thing.
And can be, if necessary, used for their education or benefit as they're growing up. But what you do is you leave a sort of mini trust in the will, which specifies what you're going to give to any grandchildren and how it's to be applied and who's to look after it.
Angela - Just a couple more questions. What if someone has a family home abroad? Do they need to get a foreign will or does it apply?
Austin - Yes. Well, the quick answer is they should take advice from the solicitors or abogado or whatever it is abroad that in the jurisdiction of where the property is. In Spain, I'm not a Spanish lawyer, but I've got a lot of clients who have Spanish properties, and the advice they get is you must make a Spanish will, because if not, Spain is still what they call a feudal system of property ownership, and there are traps for the unwary if you don't get full Spanish legal advice and a Spanish will.Now, the Spanish will and the Scottish will can interact with each other, because what I tend to do at the end of, as a final line, it says, I revoke all prior testamentary writings, which just means if anybody turns up with an older will, it's cancelled, apart from any overseas will. It means that if it's a Spanish will, it doesn't cancel the Scottish will, and the Scottish will doesn't cancel the Spanish will. They sit in parallel.
I'm pretty familiar with Spain. I, funnily enough, had a couple of clients with Italian property recently, and that's much more complicated. And the advice that I've seen from Italian or Italian qualified lawyers is that as long as the Scottish will mentions the Italian property, and after the death, you get an Italian translation of the Scottish will, then that will be enough for the Italian authorities.
But I'm still investigating that. And the moral of the story is this, don't assume anything. If you have property abroad in any jurisdiction, United States, Canada, Italy, Spain, Croatia, get advice from over there, and make sure that the way your Scottish will is written, it does not take precedence over any other will in respect of property overseas.
Angela - That does sound like another topic for another day. Finally, how much does it cost? You mentioned it wasn't that much, but how much roughly could you expect to pay?
Austi - I think that for a solicitor to sit down with you, go through everything properly and create a will, which he or she would then discuss with you, rather than present you with something just to sign. There's a lot of time involved in that, a lot of expertise as well, and the client's time too. I wouldn't like to think of a will as costing anything less than 200, 250 pounds, plus the dreaded VAT, which solicitors have to charge. But, but, but, there are various schemes that are available for charitable will instruction. I'm going to mention just three of them, but, you know, Google it. Ask your solicitor which scheme or schemes he or she or the firm that they're in are involved in.
Will aid is one, and what happens is you go along, you get the will made, you don't pay a fee to your solicitor, but you make a donation, and that donation goes in full to Will aid. And the solicitors that are involved in that give up their time and expertise specifically for that donation. The second one is Will Relief Scotland, which is just what it says in the tin.
That's in September each year, and you just literally do a similar kind of thing. The third one is one that I like very much, Cancer Research. I've done a number of things, but not just in the law.
In my karate club, we had a press up challenge, and it was 100 press ups a day for a month. We actually ended up getting about 15 grand for that. The whole karate club did it, and it was wonderful. But one of the reasons I have an association with them is that they are associated with law firms. And the idea is that you will be encouraged, and your solicitor will be encouraged to encourage you to make a donation. Perhaps leave a small sliver of your estate to cancer research or a monetary donation, but it's a way of increasing their funds and their work and also awareness generally.
But that's it. And if you have a very complicated estate, maybe you have a business, maybe you have, you know, a blended family with all sorts of considerations about your ex owning, you know, jointly owning property with your ex, the fee might be more for that kind of will. So I don't want to be too restrictive, but for a small investment of a few hundred pounds, you can get the reassurance of having something that is robust and that will either satisfy the needs, the legal needs of your estate if you die tomorrow, or if you die in 60 years' time.
Angela - Finally, finally.
Austin - final, final, yes.
Angela - I think I said finally before
Austin - .It's all right.I forgive you.
Angela – I want you to give me some top tips on writing a will. So imagine that you're going in the elevator and you're going up to the fifth floor. I want five tips on writing a will.
Austin - Okay. One is to get an old-fashioned sheet of A4 or a notebook or something and write down what you think the will... Even if you've never seen a will or know anything about it, write down what you think it should have in it.
The next thing is, ask friends and family who their solicitor is. Find out what firms or if that firm or any other firms do this first free consultation. Work out your questions in advance and that may be the same as what's on your notebook or sheet of A4.
Find a time when it suits you and your mind is clear and you're not under a lot of pressure to go in and have that consultation with the solicitors so that it's a day when you are ready to think about it. And even if you're unsure and you've never been to see a solicitor before, well, be reassured because we're just like going to the doctor or the dentist or whoever, you know, we're friendly people and we understand the, you know, the unfamiliarity of it. But if you need to take somebody in with you, take somebody in with you, and the solicitor will be perfectly happy with that. It's sort of a moral support. But I think you'll find very quickly that you don't need that person, and the moral support comes from the solicitor. So I don't know if that's five things, but I think it boils down to this.
Get in your mind that sadly, we are all going to die. We're all in a waiting list, and we just don't know where in that waiting list we are. A number could be called at any time.
Think of how your death would affect everybody around about you, not just emotionally or the loss that they would sustain. How would it play out legally, financially, property-wise? Just make the decision in your mind, I do need to make a will.
So having made that decision, all of the other things we've talked about can quite easily snap into place. And you will find, I'm sure you will find, because everyone tells me this, once you've been through it and you've signed it, and the solicitor has said, right, we'll put, we’ll will store that away, and there's a copy of it, you'll feel a huge sense of relief for having done the right thing and done something that's probably been gnawing at you for years. That's Dr. Austin's prescription for making wills.
Angela - So get it on your to-do list as soon as possible.
Austin - Correct.
Angela - Okay, Austin, thanks very much.
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