Don’t try rule from the grave

David Knott of Private Client Trust (The fiduciary services division of Private Client Holdings)

Most of us want our possessions to be distributed very specifically when we die – the family home to one child, the holiday home to the other, a share portfolio to the surviving spouse, cash to a favoured charity – and on it goes. 

Having our wishes carried out after death and controlling the allocation of our assets is the reason we have Wills drawn up in the first place. However, many people are too controlling in their Will and leave instructions that are inflexible, unrealistic and frustrating for your heirs.

People are often inclined to have very definite ideas as to what should happen to their hard earned estate after they have passed away, and their Will would therefore be constructed in very precise terms dealing with each of the assets and spelling out exactly how and when they are to be disposed of, or retained for future generations.

For example, sometimes, out of worry of the money being squandered or of creating laziness, parents can be hesitant to let their children have access to capital too early in life and so they set out very specific instructions in their Will – down to the education and career path that their heirs have to follow – complete with where and what they are to study and at what stages of life the capital can be released to them from trusts.

Whilst all these instructions are sound in logic as the parent is only wanting the best for their family, we cannot predict the future and the “rule from the grave” instructions cannot anticipate how circumstances will change after the death of the testator.  Financial markets could be in turmoil; the family business in a trough; the children may have no desire or aptitude to follow the ‘chosen’ career path; they may have moved to another country or be going through an emotional divorce or rocky insolvency.

It is for these and many other reasons that a Will must be as flexible as possible. An effective Will should consider variable possible future scenarios and adapt accordingly. Maybe the trust should not terminate just yet; perhaps a holiday home should be purchased or the business sold.

For this flexible Will to be efficient, the testator must have trust in their executor and trustee. The executor and trustee must be of impeccable integrity, have expert financial ability to manage the affairs of another and have the emotional intelligence to deal with beneficiaries who may not have financial common sense just yet.

It is highly recommended that one contracts the services of professional fiduciary experts when drafting your Will and choosing your executor and testator.