WILLS

What is a Will?

A Will is a legal document setting out how you wish your estate to be handled on your death. In your Will you can appoint trusted Executors to deal with everything, set out your funeral wishes, appoint Guardians for your minor children, make arrangements for any pets, and of course specify how your assets should be distributed.

What are the requirements for a valid Will?

The law relating to Wills has not changed significantly for nearly 200 years, and the validity requirements are set out in the Wills Act 1837. Briefly (and with limited exceptions for seafarers and military personnel in active service) in order for your Will to be legally valid:

• You must be over 18.
• The Will must be in writing.
• The Will must be signed by you (intending your signature to give effect to the Will) in the presence of 2 witnesses, present at the same time, who must also sign the Will in your presence. The witnesses must not benefit under the Will, or be married to anyone benefitting, otherwise the gift to that beneficiary will usually fail, although the Will itself would remain valid. 
• You must also have testamentary capacity’  know and approve the contents of the Will, and be making it voluntarily, without undue pressure or influence  from others.

Executors

Your Executors will be the people with legal responsibility for carrying out the terms of your Will. It is perfectly acceptable for your Executors to also be beneficiaries of your estate.

Depending upon how complex your estate is, being an Executor can be quite an onerous task and so it is important to choose your Executors carefully. If appropriate a solicitor can act as your Executor, and of course lay Executors can always instruct a solicitor to assist them if they so wish.

Guardians

If you have children who are under 18, your Will should nominate someone to look after your child or children if they are still under 18 at your death. It can be really hard to choose who that should be, but it is still better to nominate someone than to leave the decision to the Court.

You can also include a clause ensuring that your chosen Guardians are not ‘out of pocket’ by reason of looking after your children, giving your Executors/Trustees power to lend money to them so that they can purchase a larger house for example.

Pets

In your Will you can specify who you would like to look after your pets on your death, whether that is a charity or a friend or family member. This is often accompanied by a gift of a sum of money to that person, which is intended to cover food, vet’s bills and other expenses. 

Note that in the UK pets are treated as property, and so cannot receive a gift themselves.

Intestacy

By making a Will, you are in control of how your estate is distributed following your death.  

Without a Will, your estate will pass according to Intestacy laws and be managed by your nearest relative(s) which may well not produce the result you would want.  

For example, in the case of a married couple with children (depending on the value) the estate of the deceased spouse would not necessarily all pass to the surviving spouse and instead might need to be shared with the children.  

The intestacy laws also produce unsatisfactory results for couples who are not married or in a civil partnership (who have no automatic entitlement, but may have potential claims under the Inheritance (Provision for Family and Dependants) Act 1975), and for those who would not wish their closest family members to benefit.  

The intestacy rules also provide for minors to inherit at 18, and of course take no account of Inheritance Tax and any planning you might be otherwise able to do to mitigate this.

Estate Planning

Making a Will gives you the opportunity to consider how your estate will be taxed on death, and what might happen in terms of future care funding. There may well be scope to structure things so as to reduce liability to Inheritance Tax, or to protect part of your estate.  

Marriage and Divorce

In England and Wales, an existing Will is automatically revoked if you subsequently marry or enter into a Civil Partnership, unless your Will included special wording to prevent that happening. The laws of intestacy would then apply unless and until you make a new Will.

If you divorce after making a Will, then your ex-spouse or Civil Partner is treated as having died before you. Your Will isn’t actually revoked, but your estate may well not pass to the people you would want to inherit in that situation.

Can I make a Will myself?

There is no requirement to use a solicitor to write a Will for you, and so long as you comply with the validity requirements set out above then you could well write a valid Will yourself. However, this is not usually advisable, except perhaps in the very simplest of circumstances. 

It can be tempting to try to save money by writing your own Will, or by employing an unregulated and/or unqualified person to do so, but this very often ends up being more costly in the long run.

Vulnerable and Elderly Clients

Sometimes older clients in particular can need additional support when making Wills. I have completed specialist training to become a full accredited member of the Association of Lifetime Lawyers, equipping me with the skills needed to provide extra assistance. 

As a consultant solicitor I am pleased to be able to visit clients in their own homes, which is usually much less daunting than attending a solicitor’s office, and to give each client as much time as they need to discuss matters with me.  I will handle everything personally from start to finish, from visiting to take the instructions, drafting the Will, through to visiting again to supervise the signing of the Will. 

If you'd like any more information, or any help reviewing, making, or amending your Will, simply call me now for a free chat on 01379 450124, email me on emma@emmatrick.co.uk or complete a free online enquiry.

You can find my fixed-fee Will prices here.

Whilst thinking about making a Will, you may also like to consider Lasting Powers of Attorney (LPAs).