As people increasingly live longer, frequently requiring expensive care, gift-giving in wills needs to be approached with caution.
A will made years, maybe even decades before old age may become inappropriate as cash reserves dwindle. For example, leaving a property to one child and the residuary estate to another child might have reflected a parent’s wishes when both items had a roughly equal value, but when much of the money has been spent, the balance may change radically.
Testators may have put their will from their minds over the years, satisfied that their wishes haven’t changed. But without regular review, it is possible that on their death one intended beneficiary may be left with almost nothing.
Similarly, if the property due to be gifted is sold during the testator’s lifetime, for example to pay care home costs, then the gift will fail, leaving the legatee with nothing.
To avoid situations where family members do not receive what the testator intended, gifts need to be carefully considered and reviewed regularly.
Legal advisers should remind clients to revisit wills when selling property or entering care. By keeping in close contact with clients for whom wills have been drafted, there is the opportunity to give further advice on how to ensure their wishes are clear and can be carried out.
This can include setting out different options to try and ensure that the testator’s intentions can be fully realised, for example allowing one beneficiary the right to live in a property, but with the proceeds of any sale shared between more than one person.
There is likely to be an increasing opportunity for will practitioners to advise property owners on the best methods of achieving the result they want as care needs increase. Those who are looking to build their reputation in the wills and probate market are likely to find regular chances to help clients avoid creating future difficulties for family legatees.
Do you have any experience of a gift given under the terms of a will causing family dispute?
