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Ask The Legal Expert- Making A Will and Succession Planning in a Small Business
- AuthorRichard Howells
I run a plumbing business with my dad, who plans to leave it to me on retirement. Dad is 65 now and a little forgetful. He has left signed and detailed instructions about our succession plans, but not as a formal Will. He argues that everyone has always known about his wish to pass the business on to me, but I’m nervous about losing my livelihood. What should I do?
This is a very topical issue, since the Law Commission has just laid out proposals to overhaul and simplify the Will-making process.
Around 40 percent of people die without leaving a Will, so there is clearly some merit in their argument that if the process was less archaic it would prompt more people to take this important step.
The Law Commission has even suggested that, with proper safeguards in place, Wills could be made in text-message form or as a sound-file.
Any such drastic changes are a long way off, but the report sets out some interesting suggestions for a general direction of travel. We need to acknowledge that, these days, people communicate in a direct and simple way using modern technology, and the law must move with these times.
And as you suggest, hard-working small business owners are perhaps too busy working in the business to think about concerning themselves with legalese. However, you are wise to raise your father’s simple note of intent as a potential danger to your future and to the acknowledgement of his wishes.
It is common for a person’s legal wishes, even if they are detailed, dated and signed, to be disregarded by the Court because a legal detail hasn't been observed during the making of what is clearly a Last Will and Testament.
There are other things you ought to consider too. Though your father is in good health, you should discuss what might happen if this health fails. A Lasting Power of Attorney agreement would put you both on a secure legal footing in the event of either of you falling ill in the future. A LPA would allow you, for example, to act as your father’s attorney and look after his finances and wellbeing in the event that he loses mental capacity.
The Law Commission’s recommendations are, at the moment, simply a consultation document, and any changes to the process of will-making would be closely scrutinised before coming to pass. But I urge you to talk with your dad about the importance of making a formal will, with the help of a legal professional.
For specialist legal advice, call Richard Howells on: 01267 248981 or email: firstname.lastname@example.org
Welsh is spoken at JCP Solicitors’ Carmarthen office.
Richard is Director and Head of the Lifetime Planning Disputes team who specialise in Litigation involving Wills, Estates, Trusts and Property.
The question posed in this blog is based on a hypothetical situation.