With a surge in Will making being reported since the COVID-19 situation began, it is important that anyone who is considering making or updating their Will avoids any mistakes which might later invalidate it or prompt claims being made against their estate.
10 Will errors to avoid
Some of the most common mistakes which can cause probate disputes or invalidate Wills include:
- Signing incorrectly
A Will must be executed (signed and witnessed) in a particular way. If it is not, it can be invalidated. Ensure that you follow the correct procedure for signing a Will. Finding witnesses to a Will can be difficult at the moment due to social distancing, but it is important to avoid the temptation to use those who are mentioned in the Will as beneficiaries or who may not be independent e.g. a spouse or adult child as witnesses.
2. Not confirming capacity
The capacity required to make a Will (known as testamentary capacity) is different to general mental capacity. If you do not have the testamentary capacity required to make your Will, it will not be valid. If you are suffering from ill health, a brain injury or are taking medication which might affect your mental capacity, it is important to discuss this with the person drafting your Will. Our Will solicitors can provide advice by email, video link or telephone during the current lockdown.
3. Choosing the wrong executors
Executors should carry out the terms of a Will. However, many people who are named as executors in Wills are not consulted about whether they want to adopt this role. Others who are selected may also be either unable or incapable of dealing with your estate. That is especially relevant, in light of the current pandemic. It is therefore vital to consider who your executors will be e.g. professionals, family members or a combination of both. Also, whether or not your chosen executors are trustworthy and are likely to work well together (if you appoint more than one person).
4. Excluding certain people
Certain relatives and financial dependants can bring claims for ‘reasonable financial provision’ from an estate if they are excluded from a Will or receive very little. These claims incur costs and can delay an estate administration. If you are considering excluding someone who falls into the above categories, you should consider seeking specialist legal advice.
5. Poorly drafted Wills
Did you know that anyone can set up a business drafting Wills and the will-writing industry is unregulated? Many people may decide to make a DIY Will during the pandemic, but it is important to remember that poorly drafted Will can later be declared invalid, result in gifts failing, cause disputes and require court applications to clarify what you intended. It is important that your Will is legible, identifies who you want to benefit and is not open to misinterpretation. For example, if you have 5 cousins and you only want one to benefit from your estate, your Will should not simply say “I leave £10,000 to my cousin.”
6. Wrong charity details
Charitable legacies provide a vital source of voluntary income to good causes but if your Will is unclear about which charity you want to benefit, there could be a query over who should receive the funds. For example, saying “I leave my estate to the local hospice charity” might refer to several charities in an area which fit that description. Check your chosen charity’s name, address and registered charity number, these can usually be found on the charity’s website or via the Charity Commission’s website. If in doubt, you can also contact the charity directly (if possible at this time.)
7. Being pressurised by others
Your Will must reflect your own wishes and not those of others. If you are pressurised or persuaded by others to make your Will in a particular way, it can later be declared invalid.
8. Not considering the impact of marriage on wills
Marriage ceremonies may currently be ‘on hold.’ However, if you made a Will before you got married, it is important to realise that marriage automatically revokes (invalidates) wills. So, if you do not make a Will after you marry, the Intestacy Rules will usually apply. It is possible to make a Will ‘in contemplation of marriage’, but this type of Will must be prepared in a particular way.
9. Outdated wills
Wills should be reviewed and (if required) updated as your circumstances change, for example, your financial position changes, people named in your Will die or you have children. Given the potential impact of COVID-19, consider whether or not your Will needs to be updated.
10. Lost wills
Many people are self-isolating or may have less contact with others at this time. So, if you make a Will, make sure someone knows where to find it! This could be a professional, e.g. a solicitor or doctor, or it could be a friend or family member. If your Will cannot be located, an earlier Will might be admitted to probate or the Intestacy Rules might decide how your estate should be divided. You don’t need to disclose the details of the Will, just that a Will has been made and how it can be located.
The above list is not meant to be exhaustive. It simply highlights some points to consider when making or updating a Will at this challenging time.