We have all heard of turf wars but it’s worth acknowledging that Will wars also take place, writes Sharon Cahir of Cahir & Co Solicitors. I have over the last six months shared the Wisdom of Wills throughout Clare with the Clare Older People’s Council. Everyone I spoke with had heard of an acrimonious story in the neighbourhood arising after a death.
Everyone had a view as to how it could have been avoided by planning ahead. Hindsight may be 20:20 vision but foresight in the area of succession is the key to clarity. Ask, Ask, Ask is my recommendation – share what you want to do, ask for advice as to how best to achieve it. You can choose to be part of the solution or part of the problem. Advance planning and consultations can give you the information you need to support your wishes. Below addresses some queries that have arisen over the last few months.
Section 63 of the Succession Act 1965 deals financial benefits previously given to any of your children in your lifetime. Very simply put, if you have given a child or children a previous financial benefit in cash or property you should make it very clear in your Will if you intended to advance that child a portion of their inheritance in your lifetime or if they are to have received that money or property in addition to the gift you are leaving them in your Will.
That lack of clarity can cause contention if other beneficiaries see there was an inequity and you have not been clear at the time of making your Will and Estate plan. The onus of proving the advancement is on the person asserting there was an advancement made to one child previously. As the person that will object is likely to be a sibling, you can see how this would cause contention in the absence of clarity. Be open and transparent about what financial benefits you may have given individual children in your lifetime when making your Will so the information can be noted by a solicitor for future reference if the matter is queried after your death. A solicitor’s notes at the time of taking instructions and execution of your Will are invaluable to confirm the historical position of prior gifts given and add clarity if queries are raised or contention arises.
Where you make your Will to give a gift of land or a house especially within your farm or grounds you own, clarity again is key. Unclear boundaries can cause disputes, especially if family members must agree the dividing boundaries. You should identify the specific area you wish to gift and identify it as such in your Will by way of attaching a marked map. Avoiding the obvious may leave ambiguity if it falls to the Executor and beneficiaries after your death to clarify rights of way, roadways and access paths that are not as clear as they could be. You know your assets best so being clear with a solicitor allows them to make provision for what will best support agreement in the end.
Advanced planning and discussion can be worth it’s weight in gold. Seek a consultation with an expert for clarity. I tell my clients I am their sounding board. They share what success is to them in the outcome they wish and I share where their plan for succession may become unstuck. We seek to find a solution in their lifetime for harmony after their death. Another example arises when a person wishes to leave a site to someone but fails to mark the specific location or area on a map attaching to a Will for clarity. “I leave a site to my cousin John in the fields to the front of my farmhouse”. So what size, will any location do or will a specific desired area a beneficiary wants hinder another area being given to a different person? The more specific you can be, the greater the success of your wishes being fulfilled.
There are considerations that can cause a challenge when you bequest a house in your Will. If there is a mortgage on a property, your wish to bequest must be specific as on whether the beneficiary is to get the house free from the debt or with the debt associated with that property. Maybe there is a life policy to repay the debt or maybe you wish a specific fund or bank account to repay the debt from your Estate – be clear as to your intentions. Your Will made today deals with the current circumstances. When you die you may not have any mortgage or debts so your assets may pass unencumbered. Remember the day you make your Will, you plan with the assets and liabilities that are in existence at that time. You may have different wishes for different properties; a family home, an investment property, an overseas holiday home, a boat – each asset has different considerations.
When planning for succession, thinking of the different ages and stages you will pass through can help. In the Third Act as I like to call it, our care in senior years is important to consider. In the event your care needs require you to use the Fair Deal Scheme, you should ask about it at the time of making a Will, even if long-term care is something you are not contemplating. Understanding how the Fair Deal Scheme will work in relation to your net worth and assets at the time of creating your Will is important so you can understand the concept of a deferred payment under the scheme and how it might affect a bequest you may have in your Will regarding a house or land you own.
Have you contents you wish to specifically gift? One person’s tat is another person’s treasure. I regularly hear “no, they are not worth anything”. The value of specific contents can be more sentimental than financial so it is important to consider if there are contents you wish to bequest to a person. Make a list and like Santa, check it twice. Women may have jewellery, men may have paintings or both may have heirlooms handed down from generations. A family member or friend may have a sentimental attachment to a specific item. Make it clear in your Will. Asking is awkward, so beware small details that can cause big challenges.