08/12/22
At some point in your career as a Will Writer or Estate Planner, you will come across a client’s loved one contesting a Will. With the increased number of complex family structures, it’s becoming more common for family members who did not inherit from a Will to feel as though they should have.
In this situation where a Will is questioned, you’re likely to have a similar thought to this: if only the client was around to reaffirm their wishes!
That’s where the Will Clarity Statement will help. This article outlines the basics of what it is and the key benefits of having one when your clients instruct you to draft their Wills.
What is a Will Clarity Statement?
A Will Clarity Statement is a standalone document signed by both client and adviser in addition to and alongside a Will. It is written in plain English and sets out the circumstances surrounding the preparation of the Will. The purpose of the Will Clarity Statement is to provide extra reassurance about the testator’s wishes to their executors, trustees, and family members after the client’s passing. It clarifies exactly what the client’s wishes are and why, and speaks out where a Will cannot.
A Will Clarity Statement can be more beneficial than a Larke v Nugus statement as you and the clients agree the facts at the time that the Will has been drafted, rather than ten or more years later when the client has passed away!
If a Larke v Nugus request is received, you can use the Will Clarity Statement to respond, as it addresses the points frequently raised. We therefore recommend that a Will Clarity statement be stored with the Will for safekeeping so it is readily available in the event it is required.
Why do you need a Will Clarity Statement?
The purpose of a Will Clarity Statement is to provide additional clarification and guidance to the Executors, Trustees, and family members after the client’s death, making clear exactly what their wishes were and setting out their thought process at the time of making the Will.
It can help to manage family and loved ones’ expectations, perhaps explaining why they have not been included in the Will, as well as deterring any potential claims against the Will.
The primary purpose of a Will Clarity Statement is to defend any claim brought against the client’s estate after they have passed away in an attempt to protect their wishes.
Claims against the estate
In England and Wales, there are no restrictions on how someone can distribute their assets in a Will. Therefore, eligible individuals can make claims where no (or little) provision has been made for them in the deceased’s Will.
The main reasons that people use to bring claims against estates are due to undue influence or coercion, lack of knowledge and approval, or forgery and fraud.
One in four people would bring a legal claim against a loved one’s estate. Often many relatives are left disappointed when they don’t inherit from a loved one’s estate when they thought they would. This is even more common now with more complex and sometimes estranged families growing in number.
Even if the client is confident at the time of drafting their Will that a claim would not be made against their estate, it is worth remembering that the current situation with family and loved ones could change in the future. It is the situation at the time of death that is important and cannot be foreseen.
Many individuals believe that they should inherit from family members upon their death, and they are increasingly aware of their rights and the ways to claim. Given the increasing cost of living, many people rely on inheritance to get on the property ladder, fund business ventures or provide for themselves in retirement.
If a claim brought against an estate is successful, the people specified in the client’s Will may not actually inherit or they might find that their share is reduced.
What is included in a Will Clarity Statement?
Crucially, a Will Clarity Statement includes why certain decisions have been made.
A Will only details what the client wants to happen to their estate after they have passed away; it does not explain why they have chosen to dispose of their assets in this way.
As they are not there to explain their Will, their voice may go unheard against that of a person contesting it.
A Will Clarity Statement ensures that their wishes and reasoning for the terms of their Will are recorded. It is also a record of all events that have occurred during the instruction-taking process. It outlines how the instructions were taken, who was present, risk assessments, mental capacity, and the reasoning behind your clients’ choices.
Provide a Will Clarity Statement for your clients
Having a Will Clarity Statement in place for your clients means that you can tangibly demonstrate that you are providing the best possible advice and service.
It undoubtedly makes your life easier if someone does claim against an estate, as the questions their legal representative will ask are all included in the Will Clarity Statement. This dramatically minimises the work involved for you if a claim is made.
Sign up for membership today and enquire about our CTT Legacy Software for easy access to draft Will Clarity Statements as well as over 90 other legal documents and services.
In addition, Our Know your Client and Foundation training courses contain further help in the area of instruction-taking. Find out when the next course is available here.
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