He was joined by a panel of experts: Melinda Giles, partner at Giles Wilson, and Keiran Bowe, private client partner at Russell Cooke.

The show focussed on the ‘three Ds’ (death, divorce and dementia), and while Martin apologised that these topics don’t make for particularly jolly viewing, he stressed they are absolutely vital for everyone to understand. Martin was joined by the usual interactive studio audience and viewers from home on a video wall.

The introduction to the wills segment of the show explained the difference between a will and a power of attorney. The former gives instructions about what you want to happen to your assets when you die, while the latter provides directions about who would take control of your finances should you lose your faculties. Most people need both - it’s not an either-or.

Martin received a message from viewer Victoria, saying that following guidance given on a previous show, she had made a will at the age of 26. One of the panel members (a lawyer) had also made a will in his twenties, proving that it’s never too early to get this important document in place.

Another viewer (Wendy) enquired that she had recently got married but had not changed her name, so wondered if her will was still valid. Martin replied that it does depend on where you are in the country. Austin advised that in Scotland (unlike in England and Wales), it does not invalidate your will but that you should reassess your circumstances to ensure the contents of the will are still relevant - particularly if you or your partner have children from previous marriages.

While you can write a will yourself, using a solicitor is the gold standard and ensures that your will is robust and that on your death, your instructions will give clear guidance to your chosen executor.

Martin’s top tips for wills were as follows:

• Make sure your will is up to date - if you’ve got married, remarried, divorced or had children, you may need to rethink your beneficiaries.
• If you are divorced, don’t accidentally leave your pension to your ex. 
• Unmarried couples have no status in law in England and Wales - only married couples and civil partnerships have automatic rights. In Scotland, a cohabitant can try to make a claim but there are no guarantees - it’s much safer to have your wishes formally written down in a will.
• Store your will carefully!
• Think about who would look after your children if you die. At this point, Austin commented to remind viewers that in Scotland you can and should name a legal guardian but this is only indicative and not fully binding. Ultimately it’s up to the court to decide but they are likely to be guided by the deceased’s wishes.
• Protect your digital legacy (social media assets, blogs, online photographs etc.) and add a legacy contact onto digital platforms.

A viewer then asked whether you can state in your will that, should you die and should your partner remarry, you want half of the assets to go to your children. Melinda answered that you should create a trust in your will that gives your spouse permission to use the assets or property, up until the time they remarry. There would also need to be a condition added that if they remarry, that permission ends and reverts to whatever other provision you want to make. Austin answered on behalf of Scottish viewers saying that the same applies in Scotland and is called ‘Life Rent’. This is a legal arrangement that allows someone to use a property or asset for their lifetime, but not to own or dispose of them. 

Viewer Janet has been told that she cannot see her deceased husband’s will as she is not named in it and to add further distress, he put their marital home in a trust and didn’t put her name in the deeds. She wanted to know her rights to the property and other assets. The rules in England & Wales differ considerably from those in Scotland and Austin explained that if she lived in Scotland she would have a legal right to claim a share of the estate and can insist on seeing what is in the will and in the estate.

The programme moved on to Power of Attorney next and Martin suggested that a power of attorney (POA) is not just for those with grey hair! He said that people should not assume that their relatives can access their money to pay for their life costs if they are no longer able to deal with their own finances.

Diane asked about whether she could draw on her husband’s pension pot to pay for his care home fees. He has dementia but she does not have POA. The panel said that having dementia in itself is not necessarily evidence of a lack of capacity. However, if he is unable to make a POA, in Scotland you would have to go to the Sheriff’s Court to apply for Guardianship which unfortunately can be a rather long and drawn-out process.

All members of the expert panel were consulted about whether it is possible to make a POA yourself but advised that is a particularly complex process and in most cases, it is advisable to use the expertise of a solicitor. Martin gagged that of course the panel would say that (!) but he explained why...

50,000 POAs were turned down last year due to mistakes causing headache and heartache for many families. There are many complexities in making a POA and it can be ruled null and void if, for example, it hasn’t been signed by the correct people in the correct order, not signed in black ink, or mistakes have not been initialled, just to name a few examples of the potential pitfalls.

Austin noted that although there are templates available for making a POA in Scotland, it’s much better to use a solicitor because, “If you get it wrong and then lose capacity, you’re stuffed because you can’t go back!” He added that POAs in Scotland need to be a formal document, witnessed, signed in wet ink and uploaded to the Public Guardian Office.

In typical 100-miles-per-hour, Martin style, he crammed many other topics into the one-hour programme including inheritance tax, car finance misselling, mobile security, and how to get pizza and ice cream for a fiver (not something that Austin had an opinion on!)

Always a pleasure to see Austin invited on to the show to give the Scottish perspective on things. If you didn’t catch it, it’s definitely worth a watch on ITVX.

And if you want to know more about making a will in Scotland, listen to the first episode of our new Podcast, It’s The Law, or get in touch with us today.