Review your will as circumstances can change
Anyone who has possessions to dispose of and wishes to provide for loved ones and dependants upon their death, should make a will.
A will takes effect upon your death, and can be changed at any time, provided that you have the necessary mental capacity to do so and that you comply with the requisite formalities.
Weddings, births, and deaths are the usual triggers for a review as is a substantial change in assets.
However, reviewing your will regularly (however morbid that may seem) is important to ensure that it reflects your current wishes.
Marriage revokes a will unless the document clearly provides that it is not to be revoked on your marriage to a named individual. When a new child or grandchild is born, you should ensure that the child is covered in your will along with other children. If a child is not mentioned in your will, either specifically or generally, the result could be that he or she is excluded from benefit on your death. In order to receive a portion of your estate, the child may have to ask the other beneficiaries to agree to his or her inclusion. If the beneficiaries do not agree, then the child may have to sue to receive a benefit from your estate.
You may also need to consider guardianship of your children if they are under the age of 18 or they will not automatically be provided for otherwise on your death. If new family members are not included in your will and you are providing for them at the time of your death, these family members may have a claim against your estate on your death.
A death in the family should automatically trigger a review of your will.
Where your will contains a gift to your child or grandchild and he or she dies before you leaving children of their own, on your death that gift passes to their children automatically, unless a contrary intention appears in your will. This provision may be desirable.
However, if you prefer that another family member or friend benefits from the gift, you should amend your will if this event should occur, or exclude the automatic provisions of law entirely.
The law is a little different where a beneficiary who is not a descendant of yours, predeceases you. In this case the gift will not pass "down the line" to their descendants, but instead becomes part of your residuary estate (that is what is left of the estate once all the debts, taxes and specific gifts in the will have been paid). This may not mirror your intention, as you may have wanted that gift, real estate for example, to pass to the deceased beneficiary's family. Your will should be amended, or a provision included in it, directing to whom the gift is to pass in the event of the beneficiary's death.
If all the people you have named as your executors die before you and you have not amended your will, statutory provisions determine who will wind up your estate. This may not always be desirable and your will should be revised if this should happen.
Alternatively, you may appoint a trust company to be your executor thus benefiting from continual succession.
Another option is to name substitute executors in your will to act in the event that your executors die before you or are unable to fulfill their role for any reason.
Planning on getting married? Another reason to revisit your will. Marriage revokes a will unless there are clear words in the will which provide that the will is not to be revoked on your marriage to a named individual. In making or reviewing your will you should consider how your assets are owned to ensure that they will pass according to your wishes. You may own more property at the time of your death than you did at the time of making your will. Alternatively, you may have disposed of property between making your will and your death. If you are a joint owner of property but all the other joint owners die before you, then you are able to dispose of the whole of the property in your Will, even if at the time of making your will you were one of many joint owners.
Conversely, if you die before your co-owners and the joint ownership has not been severed, the surviving joint owners are not obliged to carry out the terms of your will, and can do as they wish with the property.
Similarly if you sell an asset, which you have specifically given in your will, you should consider making an alternative gift. This could be the proceeds of sale of the asset, or perhaps another asset that you have bought in substitution.
Financial situations and friendships change over time. Family or friends may have become estranged or, conversely, closer.
That special legacy or gift to them at the time your will was prepared may not now be warranted or adequate. Review your will to ensure gifts are merited and sufficient.
If you are planning on changing your domicile or acquiring another nationality or merely purchasing assets in a foreign jurisdiction, your will should be reviewed and overseas tax advice should be obtained. Let us not forget the changes in our moral values, which can occur over time. You may wish to provide for a favourite charity or educational institution in your will that has helped you or a loved one over the years. Gifts to charities are exempt for stamp duty purposes, thereby reducing the overall charge to stamp duty on your estate.
People are becoming increasingly aware of the value of leaving their body, or part of their body, for medical science or therapeutic purposes. These are all matters that can be dealt with in your will.
Whilst it is important to have a will, it is just as important to review your will at least annually to ensure that its provisions are appropriate. Proper advice should be sought where changes in your assets or personal circumstances lead you to alter your will.
Attorney Vanessa Lovell is a member of the Trusts and Financial Structures Team of Appleby Spurling & Kempe. Copies of Ms Lovell's columns can be obtained on the Appleby Spurling & Kempe website at www.ask.bm. This column should not be used as a substitute for professional legal advice. Before proceeding with any matters discussed here, persons are advised to consult with a lawyer.