Whether it is superstition, our innate reserve, or just ‘not-the-done-thing’, the majority of people in this country are generally reluctant to have conversations about what is to happen following their death.
We are told that 60% of the population have not made a Will and despite various government campaigns, this figure has remained stubbornly high for many decades. Even in the case of those people who have made Wills, there is often a reluctance to discuss their contents with their nearest and dearest, even though these conversations would be helpful for the family members who have to deal with the consequences.
There are a number of instances where discussing the contents of a Will in advance of someone’s death can have beneficial consequences.
Avoid awkward surprises
An obvious reason to do so is to avoid awkward surprises after death. It is nearly always better for the testator to explain the reasons for certain decisions to family and close friends, particularly where there is some inequality or a risk someone is likely to feel aggrieved. It is better to be forewarned than it coming as a great surprise following the death, when emotions will be running high and the individual will be left to speculate about the reasons for the testator’s provision, or lack of. Such conversations may be difficult, especially if one of the parties is disappointed, but it is nearly always helpful to have them in the long run.
No one is suggesting that certain conversations may not be difficult and fraught. However, if during the course of such a discussion, the testator is made aware of the strength of feeling by certain parties (and not necessarily just by those who stand to lose out) against a certain course of action it may persuade the testator to review the position again and make changes to their Will. Alternatively, if they are made aware that their decision is likely to provoke a strong reaction, but they still do not want to change their mind, they may decide to strengthen the provisions of their Will to try to ensure that their wishes are carried out.
Selecting and consulting your executors
Discussing the provisions of your Will with your executors can also be very important and assist them generally in the subsequent administration of the estate, not least so that they are aware of your principal assets and liabilities and any “sticky issues” that might arise.
But even before such discussions, it is highly recommended that you first ask the person if they are willing to act as executor, as a matter of common courtesy, especially if they are a non family member and may not expect to be appointed. While some people may regard it as an honour, an executorship can be quite an onerous task and not everyone will be willing, or able, to take on the role.
It is also best to be open with your family about who is being appointed as executor. It is easier for the testator to explain the reasons for their choices to friends and family than for loved ones to find out after the testator’s death that they have or have not been appointed. Failure to consult may result in the potential executor renouncing their appointment. Obviously, there is a risk if you speak to a potential executor that they will tell you they do not wish to act, but at least you can then think who else to appoint in their place.
Choosing guardians for young children
The choice of guardians for infant children is also extremely important and the role can carry huge responsibilities. Potential guardians should always be asked if they are willing to act and be made aware of the testator’s views on the welfare, schooling, and general upbringing of the children.
The executors should also be part of these discussions so that they are fully aware of the testator’s wishes when it comes to the future upbringing of the children and financial support for the children and guardians.
Preserving sentimental value
Sometimes there may be items of important sentimental value which the testator wishes to leave to a specific beneficiary. Again, it can be important that the family or people with close connections are aware of the decision to ensure that the items in question are not sold.
This could be relevant where the testator has lost capacity and their attorneys, appointed under a Lasting Power of Attorney, are required to sell their house and contents. It will be helpful if they are aware of the contents of the Will so that they can check which items should not be sold. Often the executors and attorneys are the same people, but it is also helpful if the LPA gives express authority for the attorneys to see a copy of the Will.
There are often situations today where, for tax and family reasons, it is sensible for someone’s Will to be very flexible and not prescriptive. In such circumstances, the testator should set out their thoughts on the distribution of the estate in a letter of wishes to their executors, and discuss the terms of the letter with them if there is a risk of conflict.
So whether it is to prevent those awkward surprises, obtaining the agreement of the person who you would like to take on the role of your executor or guardian and forewarning them of any ‘sticky issues’, or to stop the sale of an item left specifically under the will, having that difficult conversation is nearly always the best course of action.