Making a Will is one thing, getting it right is another – as the growing number of inheritance disputes between family members shows.
Whilst more than half of all British adults still haven’t made a Will, of those who have, around 54 per cent have never got round to updating it – despite major life changing events like getting divorced or married.
And this can create a whole host of problems, costs and complications for those left behind.
So, what can you do to ensure that you are in charge of the final destination of your estate, knowing that your family, friends and the charities of your choice will be provided for as you wish.
Here’s a simple seven-point check list to help you get it right.
Did you know…?
- Getting married again revokes all previous Wills. In effect, until you make a new Will, you don’t have a valid Will, which means that if you die, the laws of intestacy decide how your estate is divided and not the wishes expressed in your pre-marriage Will. This may not be what you want, especially if you have children. The only exception is if the Will written before your marriage contains a specific and correctly written clause saying it is made in contemplation of marriage which means it won’t be invalidated by the wedding.
- It’s vital to review your Will if you get divorced. If you don’t, your existing Will remains valid and although the decree absolute effectively removes your former spouse from your Will, other named executors and beneficiaries remain the same. And if you’re separated but not divorced, an estranged spouse can still benefit if your Will hasn’t been updated.
- Your cohabiting partner won’t automatically inherit if you die without a valid Will in place. Neither will any stepchildren unless you have formally adopted them. Addressing this is key – drawing up a legal document which sets out exactly what you want to happen if one of you dies.
- A correctly drafted Will is vital. It is perfectly possible for handwritten, homemade Wills in England and Wales to be considered legally valid but only if they have been properly drafted and executed in accordance with Section 9 of the Wills Act 1837. Basically, the Will must be signed by the person making it (the testator) in the presence of two witnesses (who can’t be beneficiaries or spouses of beneficiaries) who each sign the Will in front of the testator. There must be no evidence that the person making the Will lacked mental capacity or was under any kind of duress.
- Having mental capacity when making or changing your Will is key. In legal parlance, it’s known as being ‘of sound mind’ and in a world where the number of Wills being challenged is on the rise, the importance of establishing mental capacity when drafting a Will has never been more important. One way to prove testamentary capacity is to make sure you use a qualified legal professional to draw up your Will for you as this will ensure that, if advisable, an assessment of capacity takes place and is recorded on the file for future reference.
- Your Will can be contested or challenged when you die. There has been a 62 per cent increase in inheritance disputes over the last two years, at least partly attributed to the rise in popularity of DIY Wills. Most people are unaware that the DIY Will writing market is unregulated which means you have nowhere to go for redress if something goes wrong. Also, there are often hidden costs like being charged an annual fee for Will storage. Any Will can end up being challenged or contested if someone thinks they have not been left what they were promised, but a properly and professionally drawn up Will by a solicitor is likely to be far easier to defend.
- An up-to-date Will can save you money. It means you won’t miss out on fast changing tax laws that could save your family thousands of pounds in death duties including new Inheritance Tax rules and the additional ‘residence nil rate band’ threshold. Donating to charity via your Will can also reduce your tax bill.
For help and advice about making or reviewing your Will, please contact Wards Solicitors’ specialist Wills, Probate and Mental Capacity team.