21 November 1997

Why wills are

vital – especially

for farmers

Dying without a will in place can cause untold complications

for your successors. Simon Blandy from solicitors Ralph

Hume Garry answers some commonly-asked questions

: Why should I make a will? I dont care what happens to my estate when I die.

A: There is no answer to this.

: I dont have any assets worth giving away.

A: In only the most exceptional circumstances does an individual have no assets. A will can also be used:

&#8226 To revoke a former will if circumstances have changed for the testator (see box for explanation of terms).

&#8226 To name the executor who will collect in and distribute the estate.

&#8226 To name an individual or individuals who can act as guardian for any child under 18.

&#8226 To minimise the prospect of a dispute over the distribution of an estate.

: What does a will look like?

A: It can be in any written form provided it is signed by the testator in the presence of two witnesses who have to satisfy themselves the testator knows what he is doing.

: What are the most common defects in the will?

A: A beneficiary who acts as a witness to the will will automatically have the gift to him invalidated, although the rest of the will wont be affected.

&#8226 It is not possible to understand the intentions of the testator.

&#8226 The new will does not state sufficiently clearly that an earlier will is intended to be revoked and there are inconsistencies between the earlier and later wills.

: I was told my estate would automatically pass to my spouse when I died.

A: This is only partly right. If there are children of the marriage your spouse will be entitled to your chattels and a fixed sum (currently £125,000). The balance of the estate will be split so that your spouse will get 50% of the estate and any children will between them share the other 50%.

If any of the children are minors only income from their share of the capital – and not the capital itself – can be spent until they reach their eighteenth birthday.

Where there are no children of the marriage, there are rules for half of the estate to be passed to different categories of the deceaseds blood relatives. Only if there are no children and no blood relatives is the spouse entitled to all the deceaseds estate.

: Can I draw money from my husbands bank account as soon

as he dies?

A: No, your husbands authority ceases as soon as he dies. Banks will not allow you to draw any funds until probate has been granted. It is always worthwhile considering whether to have all bank accounts in joint names so that you are able to draw out money before probate is granted. It would be sensible to talk to someone at your local branch before changing any account to joint signatories.

: Surely I can overcome all these problems by giving my spouse

power of attorney which can be

used after I die.

A: No, the authority given by a power of attorney ceases immediately the person giving that authority dies.

: What happens to my share in the farming partnership?

A: That depends on the terms of the partnership. If there is no partnership deed and the partnership is governed by the Partnership Act 1890, the partnership will be automatically dissolved. Whoever is entitled to your interest in the partnership on your death will either be paid out by the other partners or the farm will have to be sold and any monies left after payment of all creditors will be distributed between the partners including the deceaseds estate in accordance with the terms of any partnership agreement.

The most effective way of preventing the partnership coming to an end would be to provide for that share in the partnership to be bought by the other partners in accordance with a valuation formula set out in the partnership agreement.

: Am I able to stop my brother/sister (who is not going to work on the farm) from having a share in the partnership?

A: No, not if a share in the partnership has been gifted to her. The only and usually fatal resolution (so far as a continuing partnership is concerned) is to dissolve the partnership.

: Am I able to challenge a will if I dont like it or think it is

unfair?

A: Only in limited circumstances. A will is presumed to have been made by the testator when he knew what he was doing if it complies with all the formalities. In those circumstances, the burden will be on the person wishing to challenge the will to prove that it is invalid.

An action can be started under the Inheritance (Provision for Family and Dependents) Act 1975 for financial provision from the net estate within six months of the grant of probate if a close relative or common-law spouse is able to satisfy the court that the will has not made a reasonable provision for him.

The courts do not always look sympathetically at an application by an adult able-bodied son on the basis that he should be able to obtain gainful employment. (The case may be stronger if a son worked with his father for a number of years on a subsistence wage on the basis of a promise that the farm would one day be his and that he would not have done so had he known that he would not inherit the farm).

No attempt has been made to take account of the law outside England and Wales.

&#8226 Testator – person making the will.

&#8226 Executor – person who collects and distributes the estate in accordance with the terms of the will.

&#8226 Estate – all assets to which a deceased person is entitled immediately before they die, as well as their interests in any business.

&#8226 Minor – any person under the age of 18.

&#8226 Beneficiary – a person to whom a gift is made by the will.

&#8226 Chattels – any property except freehold land.

Sons who work for their fathers for years on a low wage on the basis that they will eventually inherit the farm may be able to challenge the will if it turns out that the farm is not left to them.