A recent study by English firm Nockolds suggests a notable rise in High Court inheritance disputes in England and Wales is partly down to DIY will-making. Although there is no equivalent review of inheritance disputes in the Scottish courts, there is sufficient anecdotal evidence, allied with shared professional experience, to suggest an absence of proper advice informs many of the issues around disputed wills and problematic estates in Scotland.
Do-it-yourself (DIY) wills will commonly be off-the-shelf or downloaded from online platforms. Sometimes, however, it will simply be a handwritten document prepared by the individual. Many of the issues surrounding these provisions relate to what is fit for purpose, and what is not. Consequently, those same issues can be an unintended consequence of free wills (sometimes ‘added on’ by financial advisors or agents dealing in a property sale) as well as the DIY variety.
The preparation of wills is not reserved to solicitors in terms of Scots law and whether it should be is perhaps debatable. Objectively, there is much to commend having access to simple arrangements on a budget or being able to express testamentary intentions without paying for pages of legalese. However, simple arrangements may only have application to simple circumstances and proper advice is often required to establish whether circumstances are as straightforward as they might appear.
The cumulative effect of the Succession Acts, tax legislation and its implications, and a body of aged Scots trust law (much of which will soon be old enough to receive a telegram from the Queen) means doing these things without legal advice is a risk. A will is, or ought to be, a bespoke document. The role of the specialist legal advisor is to know and understand family circumstances, what is owned, what are the tax and other exposures, and – most importantly – what is to be achieved.
‘Children’ in Scotland become adults for most purposes, including inheritance, at 16. Any child of a deceased has an automatic right of succession in that parent’s estate. Such considerations go to the heart of the problems which can arise when going budget.
Commonly encountered issues with ‘off-the-shelf’ planning include will styles being for the wrong jurisdiction and creating partial intestacy situations. Intestacy is the state of having no applicable will provisions; it can happen when a will is insufficiently drafted and leaves gaps where, e.g. people die in the wrong order (as they’re prone to do!). When intestacy applies, who gets what will be determined by statute.
Consequences of the issues created can include (but aren’t limited to):
l payment of tax that could have been avoided;
l assets and family wealth going to unintended beneficiaries;
l involvement of the Court;
l children inheriting at a very young age;
l no protective provisions for young or vulnerable beneficiaries;
l creating avoidable tax and cost exposures for beneficiaries;
l creating operational difficulties for businesses and/or farming assets caught up in the estate; and families falling out.
Nuclear families may still be the norm, but family dynamics are becoming more varied and fluid. Accordingly, there is more scope than perhaps there has ever been for familial discord where a will is uncertain, unclear, or inconsistent with what a family had understood would happen on the death of a loved one. Navigating these issues can be a costly and emotionally damaging process. In addition to unintended consequences, financial and otherwise, it may be the case that certain will writing organisations or platforms selling ‘Scottish will’ styles are unregulated and even uninsured or insufficiently insured. This too, has been a documented issue for the Courts.
Upon considering the terms of the review of the increase of English inheritance issues, the then president of the Law Society, Christine Blacklaws, highlighted the complexity of the area of law and noted that “it is vitally important people consult a professional when writing their will”. Additional consideration of the issues is available via the website of the Law Society of Scotland which notes that “there are obvious risks where no personal advice is given”.
The cheap alternative can be inviting and understandably so. Nevertheless, the risk that such an approach might represent a false economy is very real. Consulting a specialist solicitor provides not only informed advice, but security and confidence.
Pete Murrin is a Tax and Succession Partner at Turcan Connell