Knowledge Base : What is a will?
Posted on 5th June 2017 at 21:31
This section of your training covers the basics of what a will is, how it must be drawn up and how it can be amended or revoked. Test your knowledge in the next section to see how much information you can recall.
Why make a will?
If a person dies intestate (without making a will) their estate will be distributed in accordance with the intestacy rules, which may not reflect their wishes.
A will declares the intentions of the testator, which are to take effect on his death. It is an important document and has the following characteristics:
• It extends to disposition of property and other arrangements
• It is a declaration of intent
• It must be in a prescribed form
• It can always be revoked (cancelled)
• It takes effect on death
• It can dispose of assets acquired by the testator after execution (signing)
The testator can change the terms of the will by making a codicil – this must be stored with the original will wherever possible. However, if a person wants to make major changes to a will, they should always make an entirely new will.
Anyone over the age of 18, of sound mind and acting voluntarily can make a will.
To be valid, the will and it’s execution must comply with the Wills Act 1837 and the Administration of Justice Act 1982 and the administration of Estates Act 1925.
A professional adviser drafting a will must ensure that it is valid – failure to do this may lead to a negligence claim.
To be valid:
• The testator must have sufficient mental capacity
• The testator must have the necessary intention and
• The proper legal formalities must have been met
The will must be in writing. It does not have to be typed, it can be hand-written.
The will must be signed by the testator in the simultaneous presence of two or more witnesses. The witnesses must then sign in the presence of the testator.
A witness does not need to know the contents of the will but they must know they are witnessing the signature of the testator. A witness must be competent – this means they must not be mentally disordered. A blind witness is not a competent witness. If the witness is not competent the whole will is invalid.
IMPORTANT : The witness must NOT be a beneficiary named in the will or the spouse or civil partner of a beneficiary.
A witness who is a beneficiary (or spouse or civil partner of a beneficiary) will not invalidate the entire will but they (or civil partner/spouse) cannot receive the gift under the will.
A will is not a ‘once in a lifetime’ document – it should be reviewed and updated to reflect change in circumstance – particularly marriage, civil partnership or divorce.
A will may be revoked by:
• Marriage or civil partnership
• Another will or codicil
• A properly executed declaration by the testator
Revocation of a will by marriage or civil partnership is automatic, whether the testator wants this to happen or not – unless the will was made ‘in expectation or contemplation of marriage’ – the testator must ‘name’ the person they contemplate marrying. A general intention to marry in the will is not sufficient.
A gift made to a spouse or civil partner in a will fails if the marriage or civil partnership ends in divorce.
Under the Inheritance (Family and Dependents) Act 1975, the contents of a will can be challenged by one of a defined list of people of they feel they should have been included in the deceased's will or their gift should have been greater. The appeal needs to be made within 6 months of probate being granted althought there is no guarantee of success. The act is there to provide protection to people who were financially dependent on the deceased during their lifetime, althought some of the recent appeals have been from agrieved family members who have had little or no contact with the deaceased for many years.
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