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People who enjoy writing their will are few and far between. Nonetheless, most know that making one, and keeping it up to date, will bring peace of mind. They also feel that they owe it to those who matter to them.

Not getting round to making a will is an easy temptation. People think it can wait until they are less busy at work or get married or have children or retire, but the 'reasons' never stand up to analysis. An up-to-date will used as a stopgap is infinitely better than not having one at all, or having one that is out of date.

So, why do people delay or avoid the process?

1. "I don't need a will because my wife/husband/civil partner will inherit everything anyway, and that is what I want to happen"

Wrong. If your client has children, their wife/husband/civil partner will not inherit everything unless their estate is worth less than £250,000. Assets over that value will be divided equally between the spouse and the children.

If they have no children but do have surviving parents, siblings, nephews or nieces, the spouse does receive the estate up to the higher figure of £450,000, but only half of any value in excess of that. If a spouse or civil partner is to receive more than these stipulated amounts, a will is needed to make that happen.

2. "It is so difficult to decide who to appoint as guardians for my children, so updating my will has to wait until I can sort that out"

There is no doubt that deciding who would be the guardians of young children is one of the most difficult decisions a parent has to make. Of course, it usually proves to be unnecessary. Even if it proves impossible for a client to decide about guardianship, a will that just puts the financial structure in good shape is much better than nothing. Guardians can be appointed later in a separate document. There are ways round every problem.

3. "I have to admit that my will is getting pretty old now, but my family circumstances haven't changed that much, so it will do for the time being"

Wills can be outdated not only because of family circumstances, but also because of tax law. Recent years have seen major changes to the tax code affecting inheritances on death. What was once a tax opportunity may now be a trap, or vice versa.

4. "My son/daughter's marriage is going through a bad patch, so I don't want to make any final decisions until I see how things turn out"

If there is any possibility of divorce, this makes it doubly important to shape the will to try to ensure that, should the parent die, a son or daughter's inheritance would not be regarded as assets to be divided between the parties on a divorce. Appropriate will drafting can help here.

5. "I know my will is a bit out of date, but there's no need to hurry to change it because my family could always do a deed of variation to alter it"

Deeds of variation can be invaluable as 'first aid' after death, sometimes allowing the will to be adapted in a way that makes more sense in changed circumstances. However, it is not always the case that a structure created using a deed of variation will have as favourable a tax analysis as if exactly the same arrangement had been embodied in the will itself.

Furthermore, it should not be assumed that the deed of variation route will always be available following a death. For example, it cannot be used if minor beneficiaries benefit under the relevant part of the will. If circumstances are uncertain or evolving, it is best to make a will that has sufficient inbuilt flexibility for its provisions to be adapted but without the problems that a deed of variation might face.

Hugo Smith is a partner at Bircham Dyson Bell

The firm writes a regular blog on wills, trusts and estates for Private Client Adviser

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