Tom Macaskill, Member, Innes Johnston LLP
We all make New Year’s resolutions most of which we fail to keep and sad to say one of these which I myself make every year is to put an updated Will and Continuing/Welfare Power of Attorney in place unfortunately to no avail so far – the Cobbler’s bairns are indeed the last ones shod.
As much as I don’t wish to contemplate it I definitely am not going to live forever and a Will is therefore an imperative. Its most important function being to ensure that I have as much control as possible as to who will inherit what from me.
Dying without a Will would mean that my estate would be divided in terms of the directions of Scots Law which dictate distribution between spouses, civil partners and children. This of course can mean that in certain cases what is laid down by the law will either fail to exhaust the estate to which a spouse is entitled or mean that a spouse or civil partner is entitled to everything leaving children unprovided for.
Don’t even start to think about the complications which apply to co-habitees who are required to make a claim on an estate within a fixed period failing which nothing may be inherited from even a long-term partner.
Without a Will the law determines not only who inherits but also the extent of each share of my estate.
The first thing that my Will enables me to do is to appoint Executors of my choosing who will be responsible for ensuring that my estate is dealt with in accordance with my particular wishes and hopefully is wound up timeously and efficiently.
No Will means no Executors and a requirement to have an Executor with whom I may not be particularly happy appointed by a court at an expense which may well be greater than the expense of having a simple Will prepared.
Those who still have young children and meet with a calamity may leave a situation where those children rather than being cared for by guardians appointed by their parents are looked after by relatives who the unfortunate deceased parents would not have chosen, or perhaps worse, by persons appointed by a court.
We have recently seen being dragged through the courts a family dispute relating to a young soldier whose wife and mother could not agree the appropriate place to have him interred. Clear instructions can be given to your executors in a Will as to how you wish your funeral to be dealt with and where you wish your final resting place to be. Thus avoiding a potentially calamitous falling out.
Death is a certainty but while old age might not be, those lucky enough to be enjoying the latter years of their lives may consider a Power of Attorney not to be quite so important.
Unfortunately whilst we may anticipate longer lives than our forebears those lives may not necessarily be lived out in the best of health and should it become difficult, whether by loss of mental or physical capacity, to conduct one’s affairs satisfactorily a Power of Attorney can become invaluable to ensure those whom you trust can deal with your affairs on your behalf. If you do not have a Power of Attorney and it is too late to do one a Guardianship will be needed which involves an application to the court. The cost of a Continuing/Welfare Power of Attorney will be a fraction of the cost if assistance is needed and a court application for appointment of a Guardian results.
Not only is a Guardianship expensive to set up but it also results in time wasting and potentially expensive administration on an annual basis which can be avoided entirely by the preparation and registration of a proper legally prepared Continuing/Welfare Power of Attorney.
By the considered preparation of both a Will and a Continuing Power of Attorney this year I expect to provide myself with the peace of mind of knowing that I will have made things as straight forward as I can for those who may have to care for me as a consequence of my ill health or deal with my estate as a consequence of my death and will be content in the knowledge that matters will be dealt with in the manner which I see fit rather than the manner in which the Scottish Legal System may deem appropriate.
If one of my colleagues or myself can assist you in putting your affairs in order then do please get in touch.