By Head of Wills, Solicitor James Antoniou
In England and Wales you can leave gifts to your friends in your Will because the law provides for what is called Testamentary Freedom.
Deciding who to leave gifts to in your Will can be an emotive topic, not least because your Will represents your final wishes. This means that the friends and loved ones who survive you are likely to draw conclusions about what you really thought of people based on what your Will says.
But ultimately it’s up to you to decide who to leave your things to, because in England and Wales, the law provides for Testamentary Freedom. This basically means that you can put in place a Will that benefits any person or charity that you decide on. This may seem obvious – it's your money so why shouldn't you leave it to whomever you choose?
Well, not every country has adopted this approach. In fact, a number of countries have 'forced heirship rules' which basically means that, if you die leaving certain relatives surviving you, you must, in accordance with the laws of that country, leave your Estate or a proportion of it between certain surviving relatives.
Therefore, for those people making a Will that's governed under English and Welsh law, it is entirely possible to leave gifts to your friends in your Will, even if it means that you are excluding your relatives, such as a spouse or child.
However, as with most things in law, the answer is never quite that simple. This is because whilst the law gives you this freedom, it also gives certain people (like a surviving spouse or child) the right bring a claim against your Estate after you've died; if they feel that sufficient financial provision hasn't been made for them in it.
It's worth bearing this in mind if you are thinking of disinheriting your family and leaving your Estate to someone else, such as friends or charity. Certainly, if this is the case, it is sensible to explain to those who have been excluded as to why you have done this. Alternatively if you feel uncomfortable doing this whilst you are alive, then make sure you store a separate letter alongside your Will with details of what led you to make this decision.
So now you know you can make a gift to your friends in your Will, the first thing I'd suggest is that you ask yourself – ‘why do I want to make a gift to them?’ and ‘what am I trying to achieve by leaving them a gift?’. Is it an acknowledgement of your friendship over the years? Is it a thank you to them for being there for you when you've needed them most?
There could be any number of reasons, and I always find it's well received if the gift in the Will is followed by a short statement giving the reason for that particular gift, and perhaps what is was about your friendship that mattered the most.
So once you're clear on why you want to benefit a friend in your Will, the real challenge is to consider how you are going to do it. What you ultimately decide to leave to someone in your Will is a matter for you, whether that is a fixed sum of money, a particular item of sentimental value, or even the whole or a percentage of whatever your Estate may be after any debts and liabilities have been paid off.
Over the years I have seen a few unusual bequests, such as a client who left the legacy of £1 to his friend to settle their longstanding bet that he would die first.
Friendships can take form in any manner of ways, and using your Will to have a private joke with your friend is possible. However, it comes with a hazard warning as the law may not recognise humour or sarcasm and will more likely takes words in their literal meaning. So if you are considering an usual gift or request, make sure you always take proper legal advice; before you make a Will.