Solicitors Michelle Chapman and Sarah Wintle, look at the common mistakes you can make when preparing and executing Wills. Michelle and Sarah are both solicitors on our Tax and Will, Trust, and Estate Disputes team.
Law firms have had lots of enquiries about Wills due to the COVID-19 pandemic. Some firms are reporting a 70 to 75% increase since the start of March. This doesn’t take into account DIY Wills.
Experts also expect an increase in Wills disputes due to the pandemic, and not just because people are making or updating more Wills than usual.
Lockdown and social distancing make it harder to follow regulations properly. Many people are also preparing Wills in a hurry or in a state of anxiety. These and other factors can make Wills invalid and put them at risk of a dispute in the future.
A Will dispute could mean that your estate doesn’t get divided according to your wishes after you die. It can also cause your family unnecessary stress and expense while defending your Will.
We’ve put together a list of things to consider when making a Will to make sure it’s valid and reduce the risk of disputes. It’s always best to involve a solicitor when you’re making or changing your Will. This will make sure your Will covers everything you need it to and that it’s legally binding.
Contact our experts today to discuss your situation and how we can help, call us on 0370 1500 100.
Understanding the estate
If you don’t specifically identify and gift an asset in your Will, then it’ll form part of your left over estate. Conflicts can happen when someone isn’t sure of the assets in their estate or the value of those assets.
Common problems include:
- Forgetting assets
People often forget assets such as bank accounts, premium bonds and shares. You should also remember your digital footprint, such as your social media accounts, music, photos and other online accounts. Some assets, like pensions, can also fall outside of a person’s estate.
- Understanding joint assets
Unless you give specific instructions in your will, your share in any join assets will automatically pass to the surviving owner or owners. This issue often happens with property and bank accounts.
- Not accounting for debts
Your liability for your debts doesn’t end when you die. Your estate must pay any debts before anyone can inherit from it, leaving less for them to benefit from.
- Being too specific
An asset’s value usually changes during someone’s lifetime, for example if they swap, lose, purchase or sell an item. If the terms of a Will are too specific about asset value, any changes may cause confusion or disagreements when the person dies.
- Being too vague
On the other hand, disputes can also happen when the wording of a gift is too vague. For example, a vague description could match many different items, making it difficult to tell who is supposed to inherit what. This is common for gifts left in Wills such as jewellery.
Appointing executors
An executor is someone named in a Will and who is responsible for sorting out the estate of the person who’s died. You can name one person (like your spouse or partner) or a group of people to be executors of your estate.
Anyone aged 18 or above can be an executor of a Will. There’s no rule against people who are beneficiaries of a Will also acting as the executors of that same Will.
It’s important that an appointed executor is someone who you trust and is willing to deal with the administration of an estate. If there are multiple executors, it’s wise to consider if they’ll be able to work well together.
Identifying beneficiaries
Beneficiaries are people named in a Will to inherit from the estate of the person who’s died. A beneficiary can inherit things like property, land or money.
It’s important to identify the intended beneficiaries and when they should inherit clearly.
Things can get complicated with:
- Stepchildren
The term ‘children’ doesn’t include stepchildren even when a step-parent raises them from birth. If you want to leave something to a stepchild, you should express this clearly in your Will.
- Adopted children
When someone is adopted, their legal relationship with their biological parents ends. This means they can’t inherit from their biological parents’ estate unless the biological parents specify an inheritance by making a new Will after the adoption.
Legally adopted children inherit from their adopted parents’ estate the same as biological children.
- Charities
It’s common for charities to change their names, addresses, merge with other charities, or otherwise appear very similar to another charitable organisation. We recommend that you give full details of the charity including the registered charity number, where applicable.
- Beneficiaries dying before they can inherit
Gifts often fail if the beneficiary dies before the testator (the person who made a Will). It’s important to clarify how the gift should pass in these cases.
Amendments
Any mistakes should be clearly crossed out and initialled by the testator and the witnesses.
Signing a Will
A Will must be signed by following the rules set out in section 9 of the Wills Act 1837. These include that the Will:
- Must be in writing
- Should be intended to have the effect of a Will
- Must be signed by the testator (the person making the Will) or someone on their behalf (and the testator must give permission for this to happen)
- Must be witnessed when the testator signs it (or acknowledged in front of) by two or more people
- Must be signed by the witnesses in front of the testator.
There may be other issues that could make a Will invalid. These issues are often to do with to how the Will was executed. These issues could include:
- Signing a draft Will
In urgent circumstances you can sign a draft Will. In these circumstances, it’s advisable to make sure that any reference to ‘draft’ is crossed out. You should also fill in any gaps and deal with any amendments correctly by crossing them out or including them in the Will.
- Having a beneficiary (or their spouse or civil partner) witness the Will
Any gift you leave to a beneficiary will become invalid if that same beneficiary witnesses the signing of your Will. The gift will also become invalid if the beneficiary’s partner or spouse witnesses the signing of the Will. If this happens, the gift will pass to other beneficiaries in your Will.
- Witnesses not physically present
A Will cannot currently be ‘virtually’ witnessed. During lockdown and social distancing, you can witness a Will correctly if there is a direct line of sight and the witnesses can see the testator signing the Will.
- Using no or a poorly drafted attestation clause
An attestation clause is a clause next to the signatures confirming the circumstances surrounding the execution of the Will. If the testator is blind, illiterate or have limited understanding of English, you should include an attestation clause. If you don’t, this could lead to a dispute.
- The Golden Rule
Where a testator is elderly or poorly, people may question whether they had the mental capacity to execute the Will. It’s recommended that a doctor witnesses a Will or to certify the testator’s capacity (this is called the Golden Rule).
- Electronic Signatures
You can’t use an electronic signature to execute a Will.
The common mistakes and pitfalls are more likely to happen during lockdown and social distancing. The consequences of not paying due diligence early on, could mean someone will challenge the Will’s validity.
It’s highly recommended to get professional legal advice when considering creating or updating your Will.
Contact our specialist Wills team today if you need advice, call us on 0370 1500 100 or contact us online.
