In this episode, we talk through some of the common mistakes people make when writing a Will and the implications these errors can have both can have emotionally and financially.
Welcome to In Brief, the podcast by THP Solicitors. Today I have Claire Earwaker Dos Reis with me from our Wills, Trusts & Estate Administration team. Claire is going to talk through some of the common mistakes people make when writing a Will and the knock-on effects that can have emotional and/or financial implications.
Right then Claire, what’s Number 1 on your list?
So, number one would be, a Will not being correctly witnessed.
In order for your Will to be legally valid it must be signed by the person making the Will in the presence of two witnesses. and then those two witnesses must subsequently sign the Will in the presence of the person making a Will. So practical terms it should be signed by the Will maker and the witnesses at the same time and your witnesses must have a clear view of the act of you signing your Will and vice versa.
The witnesses have to be over the age of 18, they must not be blind, and they must be of sound mind. But the biggest issue is that your witnesses cannot be a beneficiary of your Will or the spouse or partner of a beneficiary. If that happens, they essentially disclaim their inheritance. For example, if you are leaving your estate to your children, and they witness you signing your Will, they cannot inherit their share under that Will.
So, it is really important that you have independent witnesses, and that you are all present and see each other signing at the same time.
With that hurdle out of the way, what’s number 2?
Having a Will that is out of date.
A lot of people think writing a Will is a one-time job, you put it away in the cupboard, and that’s it. But your Will needs to be continually reviewed, ideally every 3-5 years. In life, everyone’s circumstances continually change and so your Will needs to reflect that.
Particular examples are if you get married (as a lot of people don’t know that marriage automatically revokes an existing Will), getting separated or divorced, having children, becoming a stepparent, or when a family member dies. These are all really important trigger points to review your Will.
Also, sometimes there are changes in legislation, so I would always recommend you review your Will every 3-5 years at a minimum or if you have any significant life changes.
So, what’s Number 3?
Amending a Will after it’s been signed.
So, once a Will has been signed and witnessed correctly you must not alter or amend the original Will as by doing so you will invalidate it. This includes pinning something to a Will, stapling it, gluing or attaching anything to it, as well as actually writing on the body of the Will. So other than in the process of signing and witnessing the document you should not write anything on your Will.
The only way you can change or update a Will is by making an official alternation through a separate document called a Codicil, or more commonly people just choose to make a new Will and revoke the old one.
And presumably, a Codicil would be drawn up by a solicitor?
Exactly, as per a Will, a Codicil definitely needs the supervision of a legal professional to ensure that it is drafted, signed, and witnessed correctly in order to ensure it is valid.
Great, what’s Number 4?
Failing to appoint guardians.
A lot of people only associate Will with financial provision but they are also key to ensuring that minor children are protected in the event of both of their parents dying.
Obviously, this is not a nice thing to think about, but not appointing guardians for young children in your Will can actually be quite catastrophic. The reality is if you don’t formally appoint guardians in your Will, and there is no surviving parent, ultimately it is the courts that decide who will raise your children and that may not be whom you would have chosen. Although you might have had conversations with your family or loved ones about what you would like to happen, if you haven’t formalised it in a Will the court will make that decision on your behalf.
In preparing a Will you can appoint guardians, and should the worst happen, you will know your children are protected and are placed with people that you choose and trust.
Right, what’s number 5?
Sometimes Wills can be either too specific or not specific enough.
Being overly specific can be detrimental due to changes in circumstances, for example, if you wanted to give one of your children your black BMW but you sell the car after the Will has been signed that may lead to confusion and potential disputes.
And likewise, not being specific enough, can also cause difficulties if you, for example, leave out key details, incorrectly describe your assets, or do not name your beneficiaries properly which can make administering your estate very difficult for your executors.
Not being specific enough can lead to gifts failing or in some circumstances leading to something called ‘partial intestacy’ which basically means the law determines who that part of your estate goes to.
This is really key actually, as to why using a professional to draft your Will is so important, as they can advise you on the best way to structure your Will so that it honours your wishes and most importantly use particular clauses in your Will called ‘precedents’ that have essentially passed a test of acceptability to ensure that the wishes in your Will don’t fail.
What’s number 6?
Appointing inappropriate executors or not appointing executors at all.
An executor is someone that deals with the administration of your estate after you have died. They have the responsibility of carrying out your wishes as written in your Will. In lots of cases family or friends will be the executors or you can appoint solicitors. However, sometimes people forget to name executors in a Will, or they forget to appoint a replacement if their first choice isn’t acceptable/ available.
So, you should always think very carefully when choosing an executor. Take into consideration their age - they must be over 18 but also you do not want them to be particularly elderly as that may affect their ability to carry out the tasks required. Think about their health, location, and skill set. And particularly if your estate is sizable or complex you should definitely think about appointing a professional, such as a solicitor, to act as an executor.
Good advice, final one, number 7?
Number 7 is another key and very important issue, and that is not having an original copy of your Will.
When you pass away, the original will must be submitted to the courts to administer the estate and the only valid Will is the paper document that has been signed by you and your witnesses in pen.
If your executors can’t locate the original Will, then it will be considered that you have died without one and your estate will be administered according to the default law of intestacy which means all of your hard work in preparing a Will essentially goes to waste.
It is really important to keep that original document somewhere safe. Again, that’s the benefit of using solicitors as they will often securely store the original Will for you, so you don’t run the risk of that document being lost.
It’s amazing how small mistakes in your Will can have really big implications both financially and emotionally. Thank you very much for that Claire. If anyone listening to this podcast has any questions about drafting or updating a Will, please contact THP Solicitors Wills Trusts & Estates team at our Henley or Reading offices. You should be able to find all of the details on our website www.thpsolicitors.co.uk