News | January 28, 2019

The importance of making an independent Will

The article was originally published by Spear’s, on 24 January 2019.

Being aware of the need for will instructions to be given freely and independently is key, writes Ann Stanyer

From time to time married or unmarried couples want to instruct a legal adviser together to make a will. Spouses and civil partners will quite often have a common interest and want a ‘mirror image’ will. In the past it was more common to have a ‘mutual will’, which bound the surviving spouse or civil partner to a will prepared in common with the deceased.

Questions arise more frequently these days as to whether it is at all suitable for two individuals – whether they be spouses, civil partners or simply partners – to give will instructions at the same time and at the same meeting. One of the couple may not really want to make a certain provision in their will which mirrors that in their partner’s will but doesn’t want to speak out. Some individuals may want to reserve a decision on a clause or gift in the draft will until they have thought about it after the meeting.

Many individuals have complicated family stories and histories. Second marriages and partnerships are commonplace, and introduce a range of needs and considerations from different sides of the family. Provision will need to be made for any children of the first marriage, but they will be concerned that their ‘share’ does not pass into the hands of their step-parent and passed on to their step-siblings.

No matter how secure the second marriage is, it will usually pay for the two parties to see a legal adviser separately to discuss their wills to ensure that each is free to express their own views.

There are also other relationships that can cause conflict; for example, between an elderly individual and the carer adult child, between the priest and the parishioner, or between the individual and their professional adviser. In all these relationships, it is vital that the individual making the will is free to make their own decisions about it.

The importance of independence is no more important than in the case of someone who is elderly and potentially vulnerable. They must have the time and space to give their own instructions. They should not feel under any pressure to change their will unless they are doing so of their own free will. It can be difficult for elderly and/or vulnerable individuals to stand up to overbearing relatives.

However, a good legal adviser should explain that it is in the individual’s best interests to take their instructions at a time of their choosing – at home if this is more comfortable for them, and without anyone else being present.

In any of these scenarios, the consequences of not giving independent instructions are that the will could later be challenged on grounds of ‘undue influence’. The claim would usually be brought by someone who would stand to benefit had the individual’s discretion and judgement not been compromised. If successful, the will is ruled as invalid and the individual’s estate passes under any previous valid will they have made; failing which, the intestacy rules.

In either scenario, the outcome is unlikely to give effect to what that individual would have wanted for their estate; and considerable time, cost and anxiety would have been expended to get there.

It is not uncommon for an elderly individual to be brought to the office of a legal adviser with their carer or with a member of the family. Most sensible legal advisers would ensure that the carer/family member leaves the room before the individual’s instructions are taken. However, the elderly individual may insist that their family member/ carer is present. Family members can help by being aware of the risk that their presence could compromise the validity of the will and allow their relative to see the legal adviser alone.

Family members should also watch out for warning signs that a carer may be asserting too much influence. These situations require extremely sensitive handling however, and it may be that the elderly relative insists on their carer being present and wants to benefit them in their new will.

In this situation, it can help for family members to carefully and contemporaneously document what is going on – and any solicitor involved should do likewise – so that this can be produced to a court at a later stage if they wish to challenge the will.

Being aware of the need for will instructions to be given freely and independently is key. It might mean that you have to sit in the waiting room whilst your spouse, civil partner or elderly mother is seeing their legal adviser to make their will; but better this than the validity of that will being in doubt when it really matters.