Bang the Drum. Make A Will. Number Umpteen.

Bang the Drum. Make A Will. Number Umpteen.

There are one or two drums that I have banging from time to time in my Blogs. It may be that my readers have taken on board all that I have been saying about – Consents for your Children to travel abroad without you, or The Need to get your prescriptions notarised if you are taking your medication with you on holiday, particularly to Russia, – or How to ensure that deeds and papers are properly expected by companies so that the Company is bound and the Director is free from personal liability, and so on.

And quite often I try to encourage you to MAKE A WILL.

Even so, I bet that every one of you has either not made your own Will or else knows a friend who has not.

Apart from one person I know who appears seriously to believe that he is being kept alive only by the magic of not having made his Will, everyone else I speak to does acknowledge the importance of having made a Will. Being “testate”. At least, in principle they do.

But it seems that being fully aware of the importance of something is for many of us not the same as actually doing it.

So if you haven’t – do it today.

If your friends haven’t, urge them to do it today. Not to wait until they feel a bit poorly. I think the idea of – yes I know its’s important but I’ll do it later, – is as inexplicable as the reasoning of  the US motorbike riders who carry a crash helmet on the back rest, not on the head. Do they think – if anything dangerous starts to happen, I’ll put the hat on?

The main problem with making a Will perhaps other than a failure to prioritise, is that sometimes it can be quite difficult to decide what to write. Not the technical writing, I trust you will use a Solicitor for that (see earlier blogs about homemade Wills, there is one – link here –), but actually deciding upon your wishes.

For single persons, or couples in a first relationship whether married or not, matters may be straightforward. But increasingly nowadays, people may be in a second or later marriage, and each party may have children to earlier partners.

And that causes problems. Years ago when I was newly qualified I sat in on a meeting between a solicitor partner and his married clients who were in their sixties and each had children by deceased former spouses. Their first marriages had lasted for decades, the present marriage was very recent.

Each of the clients was very concerned that if they died first, the surviving second spouse should not be in control of all of the money which they presently owned separately. Neither of them wanted to say so out loud. It is embarrassing to say in effect “I don’t trust you”.

But each of them had children, and they clearly wanted to ensure that the matrimonial pot did not end up in the hands of the other spouse’s children to the exclusion of their own, after the death of the second of them to go.

And they both knew from their own experience that – if I die tomorrow my second spouse might marry again. And his/her new spouse might already have kids too. And they might live together another 20 years – people live a long time these days. And my kids might be forgotten by then.

Perhaps not so much of a problem if they had millions to dispose of. But if they had a house and a hundred thousand or so, it’s a poser. Because no one knows how long they will live. Will my spouse need all of the money? –  Answer – Yes s/he will if s/he lives to be a hundred. So we need to leave our money to each other. But what if I die next week and then s/he makes a new Will and cuts out my kids?

Making a Will makes you address this sort of questions, and the fears behind them, and it nearly caused that couple to split up, right there in the office.

Very difficult, and one can see why so many people, even if they do address the question, end up by deciding –  it’s just too difficult let’s pretend we are going to live for ever.

So here is a search you can google – Link Here – it will show you a choice of several newspaper articles and commentaries.

In this case, on purpose or not, Mr and Mrs Scarle had not made Wills. Each had been married before and each had living adult children. Exactly the circumstances in which it can be difficult to decide how to write a fair Will which looks after each other and also shares any money left over after the second death between all of their children and step children.

Tragically the unfortunate Mr and Mrs Scarle were found in their house, both dead. Apparently they froze to death; at any rate the deaths were natural. But they were not discovered until they had been dead for a week or so and in circumstances in which medical experts appear unable to say who died first.

If you haven’t a Will, it is important to know when you died.

Say Mr Scarle died first. OK, his estate if he had less than £250,000.00 (bit more complex if he had more) will pass to his widow. She has afterwards died too, so all of that money plus all of her own money will pass to her surviving children

And contrariwise, say Mrs Scarle died first. OK, her estate if she had less than £250,000.00 (bit more complex if she had more) will pass to her widower. He has afterwards died too, so all of that money plus all of his own money will pass to his surviving children.

Long story short, the children of whoever died first get nowt.

In the very unusual case of not actually knowing who first died, the Law reverts to a “legal fiction”. Called the “Commorientes Rule”, it says, generally speaking and according to the laws of nature, older people have fewer years of life in front of them than have younger people. Old people reach old age and death first, then it is the turn of younger people.

So if someone is 79 (Mr Scarle was 79) and is found dead with someone aged 69 (Mrs Scarle was 69), the legal fiction says that Mr Scarle shall be presumed to have died first

The trouble, or one of all of the troubles, in all of this is that whatever Mr and Mrs Scarle  “would have wanted” for their children if they had made wills, and for whatever reason they neglected, or decided not, to do so, they certainly could not have guessed their cruel fate.

If they had left a will, each to each other, they could at least have hoped that the survivor would have “seen their children right”.

In the absence of Wills, not only shall one set of children definitely not inherit, but a jolly big chunk of their joint money will be spent on Courts solicitors barristers and the whole legal folderol.

I started by saying I’ve said all this before – but I think it’s worth repeating.

Make a Will. Now, preferably.

Here’s a link to a soothing song – I’ve said it once before but it bears repeating, Now –

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