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There’s a way when there’s a will

28th November 2018

A will is the legal means by which you can ensure that your estate (your money, property, possessions and investments) goes to the people and causes that you want it to. We have explained the importance of writing a will in previous posts. However to recap – relationships can be negatively affected and sometimes severely damaged following disputes over who inherits what in the absence of a will. If you and your partner are not married or in a civil partnership, your partner will not have a right to inherit unless you have a will. And, unless clarified, siblings and other relatives are also known to disagree regarding certain items. If you die without a will, you have died “intestate” and unless you have any living relatives, this could end up going entirely to the government. This week, we are looking at a different question:

What are the requirements for a will to be valid?

A will is a legal document and as such, it needs to be written correctly to be legally binding. To ensure that your will is valid and adhered to upon your death, all of the following must apply. You must –

  • Sign your will:

As well as signing your will, in order for it to be valid, you need to sign your will in the presence of independent witnesses who also need to sign.

  • Be psychologically sound:

You must have the mental capacity to make and understand your will at the time of writing and signing. If you have a serious illness such as a diagnosis of dementia, you can still make a will, but you need to have the mental capacity to make sure it is valid. Your solicitor should make sure of this, and you may need a medical practitioner’s statement at the time the will is signed, certifying that you understand what you are signing.

  • Revoke any older versions:

You need to state that this will revokes all others. And if you do have an earlier version –  needs to be destroyed.

  • Have made the will voluntarily:

The will must be written voluntarily and without pressure from anyone else.

Your witness

In England and Wales, your signature needs to be witnessed by two independent witnesses. Anyone can be a witness to the signing of a will, as long as they are over the age of 18, are not blind, or named as beneficiaries in your Will and are not married to anyone who is. Beneficiaries of the will should not be chosen to act as witnesses. If they do, they lose their right to the inheritance. In fact, beneficiaries should not even be present in the room when the will is signed. It is also recommended not to ask an executor to act as a witness.

The page that you and your witnesses sign (the attestation page) is at the back of the will. All three people should be in the room together when each one signs. Gather together in one place and include a formal statement in your will that you have gathered them to witness the signing of your will. They do not have to read the will or know its contents – they are only required to witness your signature.

If you are physically unable to sign the will, it can be signed on your behalf, provided you are in the room and you witness it being signed on your behalf. In addition, you must contain a clause saying you understood the contents of the will before it was signed. If you do not have the mental capacity to make the will on the other hand, as already mentioned, it is invalid.

If you make any amendments to the main body of the will, these will need to be signed by you and two witnesses again.

Are wills made online legal?

In theory, as long as your will complies with UK laws regarding valid wills, an online will carries the same legal weight as one created by a lawyer. More information on how to write a will and your options for creating one, are outlined in our blog post on what’s involved.

Common mistakes people make writing wills

There are some mistakes that will completely invalidate your Will. These are outlined below in order of (roughly) how often they occur starting with the most common at the top.

  • Incorrectly signed and witnessed: 

In order for your Will to be legally binding your signature must be witnessed by two appropriate, independent witnesses.

  • Out of date:

Often life events such as marriage, new children or grandchildren prompt people to write their Will. Importantly, any life event should prompt you to review your Will. A new marriage invalidates any existing Will.

  • Inappropriate executors: 

For example someone who lives overseas, is under 18, or does not want the responsibility.

  • Failure to make proper exclusions: 

Should you want to exclude someone who has a legal claim to your estate, you need to make sure you have done so properly. You need to leave a letter with your Will stating who you are excluding and your reasons why. Should the person concerned contest your Will, this letter will be passed to the judge who will decide if they have a legitimate claim.

  • Failure to account for debts: 

Financial commitments such as mortgages can amount to a significant proportion of your estate. It is therefore recommended to leave bequests as percentages of the estate rather than a specific sum.

  • Failure to appoint guardians: 

For parents with young children, one of the most important reasons to make a Will is to name the people that you would like to care for your children should you die. Don’t forget about the children!

  • DIY Wills: 

Wills follow some general rules of what you say and how you say it. Should you not follow these rules, it could mean that your instructions won’t be followed or even that your Will is invalid. You will have died intestate. To ensure your language is not ambiguous, your intentions are clear and your will is valid, it is best to seek professional advice.

  • Failing to make provisions for if ‘a gift fails’: 

The most common reason a gift will fail is if your beneficiary predeceases you. Be clear in what you would like to happen in such circumstances by including a ‘gift over clause’. For example, if someone has died you might wish their share to go to their children. If you do not make provisions, failed gifts fall back into your residual estate to the benefit of your residual beneficiaries.

  • Forgotten assets: 

Believe it or not, some people do forget about assets. And any assets not included in your Will will be dealt with in accordance with the laws of intestacy and could be liable for inheritance tax.

Some mistakes can entirely invalidate a Will or lead to the wishes of the deceased being misinterpreted, ignored or disputed.

At IMC, our skilled advisors are available to provide a will writing service by supporting you sensitively through the process of making a Will. Contact the IMC team for information on how you can plan for your family’s future through our wills and estate planning service.

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