Where There is a Will There is a Way
Many people do not make wills. My brother-in-law put off making a will for decades – he would never admit it, but I am convinced that that was because he secretly believed that making a will would bring about his immediate death. He was wrong: he has both a will and robust good health.
There are many good reasons for making a will – and none that I know of for not doing so.
The first, and most obvious, is that it enables you to choose where your property passes on your death. In many cases, that will be to your spouse and children. But that may not always be the case. You may wish your property to pass in a variety of different ways – perhaps with the bulk of your estate going to your immediate family, but with specific bequests to remoter family, friends, work colleagues, or that nice server who was always so helpful at IGA. Until you die it is all your property: and if you make a will you can direct how it should pass on your death.
Sometimes a testator will not want some detail of his bequest made public. There are ways of achieving this. You can provide in your will that you are leaving property to a specific person with instructions that that property should be distributed in accordance with instructions that you have given him. In that way, although the person to whom you had left it would be under an obligation to distribute your property in accordance with your wishes, the detail of the ultimate beneficiary and the amount would not be known – a semi-secret trust. Or you can say in your will nothing about the onward distribution, but simply obtain the agreement of the person to whom you are leaving the property that he will distribute it in the way that you will have communicated to him. In that way it will not be known that the property will be onward distributed, not to whom or the amount – a secret trust.
Now, compare that to what happens if you make no will. The provisions of the Intestacy Ordinance apply – the government has produced a table setting out where, if you do not make a will, your property should go and in what proportion. If you have a quiet afternoon and need distracting, read section 4 of the Intestacy Ordinance, which contains the table. It contains about 1,100 words spread over four pages. The statutory provisions are very well-intentioned, and are very sensible, but they are inevitably arbitrary. And, inevitably, they take no account of what you may wish to happen to your property after your death.
It therefore makes sense to make a will, setting out what you want to happen. That way, you choose where property goes. It also makes it very much easier for you family to deal with the formalities that follow every death. For most people it is sensible to have a will drawn up by an attorney, who will be familiar with the procedural requirements and who will ensure that what you actually want to achieve will be achieved.
Your will appoints executors who will deal with matters after your death. If your will is drawn up by attorneys they will frequently offer to act as executors. That can be sensible, as it removes both administration and worry after your death. But they will charge for acting as executors, and it is equally possible to appoint family members, friends or business colleagues who would not charge, but who could turn to attorneys for advice only as and when required. Much, of course, will depend on the size and extent of the property that will make up your estate.
The moral is to think long and hard before not making a will. In almost every case a will makes it easier for the person who dies (it ensures that his wishes will be carried out): and it makes easier for the family (it removes a layer of worry at a very distressing time, and ensures that the deceased’s wishes are known). There is no downside – making a will does not cause premature death.
Written by David Phillips QC
David Phillips QC is a senior silk with an established reputation as a strategist and advocate in the field of commercial litigation and dispute resolution. He is also highly regarded in the fields of sport, professional negligence, and EU transport regulation.
