A will should reflect your wishes, be clear, valid and ensure that your estate is distributed in the way that you want. However, each year wills are invalidated or they may prompt claims being made against estates. This is can often be due to avoidable errors occurring at the time when the will is made.
What errors should be avoided?
Some of the most common mistakes which can cause probate disputes or invalidate wills include:
- Signing incorrectlyA 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.
- Not confirming capacityThe 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.
- Choosing the wrong executorsExecutors are the custodians of an estate and they should carry out the terms of a will. However, many people who are named as executors in wills are not consulted about whether they are prepared to adopt this role. Others who are selected may also either be unable or incapable of dealing with your estate. It is therefore vital to consider who your executors will be, for example, 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).
- Excluding certain peopleCertain family members and financial dependants can bring claims for ‘reasonable financial provision’ from an estate if they are either excluded from a will or receive very little. Such claims incur costs and can delay an estate administration. If you are thinking of excluding someone who falls into the above categories, you should consider seeking specialist legal advice.
- Poorly drafted willsThe will-writing industry is unregulated, so anyone can set themselves up in business drafting wills. A poorly drafted will could be invalid and can also result in gifts failing, disputes and court applications being required to clarify what you intended. Read more about contesting a will.It is important that your will is legible, identifies exactly who you want to benefit and is not open to misinterpretation. For example, if you have four nephews and you only want one to benefit from your estate, your will should not simply say “I leave £1,000 to my nephew.”
- Incorrect charity detailsMany charities rely upon voluntary income and charitable legacies provide a vital source of funding to good causes. However, 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 animal charity” could refer to several charities in an area who might fit that description.Check your chosen charity’s name, address and registered charity number. These can usually be found on either the charity’s website or by using the Charity Commission’s website. If in doubt, you can also contact the charity directly and speak to their legacy team.
- Undue influenceIf someone is pressurised or persuaded to make their will in a particular way, the will can later be declared invalid. Your will must reflect your own wishes and not those of others.
- The effect of marriage on willsMarriage 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.
- Not updating a willWills 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.
- Lost willsIf you make a will, make sure someone knows where to find it! This could be a professional, such as a solicitor or accountant, 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 dictate how your estate should be divided.
The above list is not meant to be exhaustive. However, it highlights some basic points to consider when making a will.
How can we help?
If you are concerned about the validity of a will or a claim being brought against an estate, contact our specialist Disputed Wills Team on 01202 786152 or email us.