Homemade Wills: issues to be aware of
Whilst it is true that you do not need a solicitor to prepare your Will in order for it to be valid, as with most drafted legal documents, it is often safer for a solicitor to prepare it. They are well used to the legal requirements to make a valid Will and what happens upon a person’s death. This will help avoid uncertainty in the future. The following are some aspects of a Will a lay-person may not be aware of and which highlight the fact that legal advice is important.
1. Not having your signature witnessed by two witnesses.
This may seem obvious, but it is surprising how many people miss this vital element. If you have only one witness or none at all, your Will will not be valid.
2. Having your signature witnessed by your spouse, a beneficiary or their spouse.
It may be easy to ask someone named in the Will to witness your signature. However, if you have left anything to them in your will, they are barred from inheriting it.
3. Not naming an executor.
Some people do not think about who would deal with the administration of the estate once they have passed away. The role of executor is an important one and should be allocated to someone not only who you trust and believe to be competent, but also someone who will actually want to do the job and will be capable of doing it. It is possible to elect more than one executor, and we would usually advise this, in case one of them is unable to act for some reason.
4. Not stating who should inherit if someone you leave a gift to dies before you.
Sadly, one scenario which can unfold is that someone you thought was going to outlive you passes away. If you have left a gift to them, and they have predeceased you, then you may want that gift to pass to their children, or to someone else. If you do not stipulate this, the gift will fall into your residue and will pass to who you have chosen to receive this. This is often not what you intended.
5. Not taking into account a charity’s change of name.
In most cases, someone leaves a gift to a charity in their Will because that charity is close to their heart. However, charities can wind up, change their name or merge with other charities. If you do not provide for what should happen in these circumstances, then the gift to the charity is likely to be lost. A clause can be added to your Will covering this eventuality and ensuring that your wishes are upheld.
6. Not being specific enough.
It is no good saying that you want to give your car to your nephew, as you may have written your Will when you had a 2005 Fiat Punto, but now have a 2016 Jaguar XE. It is best to be specific about gifts such as this, or there will be ambiguity and problems may arise later on should a beneficiary dispute the gift.
7. Being unaware of the effects of marriage and divorce.
When you marry, your Will is revoked. If you do not prepare a Will after you marry (or a Will before you marry but stated to be in contemplation of marriage and not to be revoked by it), then the rules of intestacy will apply to your estate.
When you divorce, any gift to your spouse will be as if they have predeceased you. This might be something you want, but you need to be aware of this, so you can consider the consequences.
8. Not dealing with foreign property.
Each country has their own inheritance laws and so you need to make sure you are aware of what will happen should you leave a property in another country. It may be that you need a Will drafted in that country which complies with the requirements stipulated by that country. If this is the case, you need to make sure that your English Will does not revoke the foreign Will, as it is usual to have a clause in English Wills which revokes all other Wills.
Longmores will be happy to assist you in ensuring your Will accurately reflects your wishes. Please contact a member of our Private Client Team on 01992 300333 to enquire further.
Please note the contents of this blog are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.