Thursday, 14 May 2015

The Reluctant Will Maker

When you are surrounded by wills on a daily basis (as I am), it’s easy to forget that, for some of our clients, even the thought of making a will is a stressful business, to be avoided at all costs.  This was brought home to me recently when I met a couple of Family Office bankers.  They explained that some of their clients find the whole will making process a bit daunting.  The lawyer asks a lot of serious and scary questions, such as what should happen to the family business, when should the children inherit, who should be their guardians etc. etc. and then nothing gets done!  As a lawyer, this is exactly what I don’t want to see happening, as I know the profound family heartache and disruption that can arise if someone dies without a will (see my blog: ‘Dying without a will – the hard facts’ 3 July 2014; I’m afraid that might indeed scare you).

In defence of lawyers, it’s a good sign if your lawyer asks some probing questions during the will making process and rather worrying if they do not.  Asking questions should mean that nothing important is overlooked and the will is fit for purpose.  However, there are different ways of asking questions and we must adopt whichever approach helps a particular client feel as comfortable as possible about making their will. 

The following suggestion found favour with my banker friends.  It is possible to write a letter of wishes, an informal document which can be written in plain English and no legalese, explaining in broad terms what should happen after the client dies.  That letter could cover a number of things, not just matters of the family wealth and finance – hopes for the future, or how the children should be brought up.  At its most basic, the letter could simply say ‘I have discussed in detail my wishes as to what should happen after my death with X and Y.  You should be guided by them, as they know exactly what I want’. 

This approach will only work if the letter of wishes is coupled with a will containing a flexible discretionary trust into which all assets pass, but it should be possible to do that in a friendly looking will of no more than a couple of pages, if a set of standard administrative powers are incorporated.  Also essential are some very trustworthy executors and trustees, as the letter of wishes is not legally binding on them.  Guardian provisions for children must appear in the will to be binding. 
I cannot guarantee that taking this approach will not result in a lawyer-fest after the death occurs!  Not leaving detailed, legally binding instructions can be a recipe for trouble.  However, if it is a choice between that kind of will or no will at all, the will has it – every time.