This article examines the requirements of a valid Will and situations in which a poorly drafted Will has not fulfilled the wishes of the deceased.
Formalities for making a Will
The formalities of a Will are straightforward. At their simplest the formalities require a Will to be in writing and signed by the person making the Will in the presence of two witnesses present at the same time. So long as these formalities are complied with, even a Will written on the back of an envelope in green ink will be valid. If any of the formalities are missing the will is invalid.
Common mistakes that invalidate a Will
Will forms purchased from stationers are designed to assist someone wishing to write a Will without professional advice to comply with the formalities. They are sometimes described as “solicitor approved”. They set out the bare bones of a Will. It remains for the person writing the Will to fill in the gaps and to ensure that the Will is properly signed and witnessed.
Here are some examples where something has gone wrong.
- A Will signed by the person writing the Will but not by the witnesses
- A Will signed by the witnesses but not by the person making the Will
- A Will which appeared to be properly signed and witnessed but later it became clear that the witnesses had never met each other or were not present when the Will was signed.
In each of these examples the Will was invalid and completely ineffective.
Will forms do not offer any assistance with the content of the Will itself. This area also requires careful consideration to ensure that the effect of the Will is as intended. A simple error can have serious effect. For example, a Will making a gift to “Mrs Smith”. It can be impossible to be certain who Mrs Smith was and the gift can not be paid.
Providing for a change in circumstances
When writing a Will it must be remembered that a Will is valid from the moment it is signed but only comes into effect when the person who has written the Will dies.
There can be serious unintended consequences where a Will does not provide for changed circumstances.One example is a handmade Will of a woman who wanted her two sons to be the primary beneficiaries of her Will. She believed that her only asset of value was her house and that once her funeral expenses were settled there would be very little cash to distribute. She therefore wrote a Will leaving her house to her sons and the cash to her grandchildren. At the end of her life she suffered a stroke and moved into a nursing home. The house was sold to pay for her care. When she died her entire estate was cash which passed to the grandchildren.
Reference to relationships can also cause problems. The terms niece and nephew, for example, are given a strict interpretation and refer to the children of your own brothers and sisters. The terms do not extend to the children of one’s spouse.
Not including a relationship can also cause problems. Two members of a family may have the same name. How is it decided which one is intended to benefit?
The benefit of expert advice
For a reasonable fee a trained lawyer will help you formulate a Will which ensures that your wishes are carried out. You should expect the following:
- A face to face meeting where your instructions are taken and advice given on the best way of achieving your wishes
- To be sent a draft Will for approval or further discussion
- A further meeting where it is confirmed that the Will accurately reflects your wishes and is signed by you in the presence of two witnesses who are members of the solicitors' staff.
A Will is an important document. Getting it wrong can cost your loved ones dearly. For further advice on making a Will contact a member of our expert team.