Mince pies, frozen fish and the importance of getting your Will right

Wills have been in the headlines following a High Court case on whether a man’s final wishes – written on the back of packaging for Mr Kipling mince pies and Young’s frozen fish – was valid.

From a legal perspective, this is a cautionary tale. And, while it happened in England, where laws on Wills and succession differ from Scotland, it provides a general lesson on the value of a properly-drafted Will.

The case in question saw a judge rule that the Will was valid, meaning the charity Diabetes UK was able to inherit £180,000. Had the case gone the other way, the charity would have missed out on a legacy that both the deceased and his family wanted it to have. Even with the ending they wanted, the three years of legal proceedings were tortuous and costly for all involved.

Clare McCarroll is a Partner in the Private Client team, Lindsays

The problem in this highly technical case was not the use of food packets per se but whether two separate ‘documents’, only one of them witnessed, could be accepted as a single – and therefore valid – Will for probate, the equivalent of confirmation in Scotland.

That is, however, far from the only way that improvised or DIY Wills can create issues for families and charities. These include:

• Not following the rules of properly drafting a Will, meaning it may not be valid – a common issue with online Wills.
• Issues with signatures and witnesses causing invalidation.
• Language which may seem clear in everyday life causing problems when it comes to the laws governing succession.
• Certain relatives can challenge the Will if you overlook their legal rights to inherit.
• People overlooking the importance of making or updating a Will to reflect life changes such as buying property with a partner, marrying or separating.

The personal and financial impact can include costly court wrangles, the ‘wrong’ people claiming an inheritance or partners being left in financial difficulties. Not to mention stress, and expense for the people you want to benefit.

The other issue flagged by this case is the importance of legacies to charities of all sizes, especially in the currently challenging economic climate in which they operate.

Legacies to charities amount to more than £3.4bn-a-year. According to the Charities Aid Foundation, that’s 16 per cent of all fundraised income for UK charities. These gifts also offer inheritance tax planning opportunities for people and families.

Unfortunately, though, the course of true generosity does not always run smoothly, whether through the issues highlighted by this most recent case or others, including:

• A mistake or ambiguity in the Will about which charity people want to support. For this reason, the charity’s registered number should always be included as well as its legal name.
• The charity may no longer exist (or have restructured), or no longer be able to meet the legacy’s conditions (such as using it for a specific purpose).

Basic precautions when making a Will can avoid these, including checking Scottish charity regulator OSCR’s register to confirm a charity’s registered number and how the charity may prefer to receive legacies.

However tempting “easy” online or other options may appear, turning to a solicitor can also help avoid pitfalls to ensure that everyone who you intend to benefit – including any chosen charities – can do so. The back of food boxes should be the ultimate final resort.

Clare McCarroll is a Partner in the Private Client team, Lindsays