WillsFrequently Asked Questions
A Will is a legal document that contains your instructions as to how you want your property and assets to be distributed after your death. It names the people you want to benefit and who you wish to appoint to deal with the distribution of your property and assets.
A Will is a very important document because if you do not have one, the law on intestacy will determine what happens to your property and assets.
Recent studies have revealed that around two thirds of adults have not made a Will and that a third of us will die intestate.
If you die without leaving a Will some of your closest family members could be left with no right to inherit anything. Those who could miss out on inheritance include unmarried partners, close friends, carers or relations by marriage.
Writing a Will can also prevent your loved ones experiencing financial difficulties. I have seen first-hand the emotional distress families have suffered as a result of their loved one dying intestate particularly in cases of unmarried couples with children.
If you have a child or children under the age of 18 you should think about appointing a guardian to look after them in the event that those with parental responsibility for the child or children die before they reach the age of 18.
A guardian will take over the responsibility of your child or children in the event that you die before they reach the age of 18. They will take on the parenting role and will make all decisions.
You need to ensure the guardian is able to provide a suitable environment in which to care for your child or children.
You should always check with your proposed guardian whether he or she is willing and able to take on the role of a guardian and make sure that they understand what their responsibilities would be in the event of your death.
It is sensible to appoint alternative guardians in your will to take the place of your preferred guardians if they should die before your child or children reach the age of 18.
If you have children under the age of 18 and you fail to appoint a guardian to look after them in the event that you die before they reach the age of 18 the Court will appoint guardians for you. It could take several months for the Court to appoint a guardian and in the intervening period your children could be taken into care. A Court appointed guardian will not necessarily be the person you would have preferred to look after your children.
A UK Will is only valid if it is signed before two independent witnesses who must be over 18 years old. The two witnesses must not be potential beneficiaries of the Will, spouses of beneficiaries, or member of your family.
The witnesses will then need to sign and add their details. The witnesses do not commit themselves to anything by adding their details all they do is make sure the Will is signed according to the Wills Act and it will be declared valid by the Probate Court.
It is not difficult to change a will. You can amend, modify, update or even completely revoke your last will and testament at any time, provided you're mentally competent. You have a few options depending on what you want to change.
It is very important that certain procedures are followed when amending your Will. You can make small changes to your Will by creating a codicil (an appendix to your Will), for example add a new gift or remove (revoke) previous ones. You could also change your executor using a codicil.
It is important to note that a codicil does not replace your existing Will and is only valid when it refers to the Will it amends. The codicil will need to be witnessed and signed in the same way as your Will and you should make sure the two documents are always kept together.
If you wish to make a number of changes or major changes to your Will, for example changing your beneficiaries you should write a new Will as it is the safest option.
A Will is cancelled by making a subsequent Will containing a clause revoking the earlier Will or by physically destroying the Will.
If a later Will is intended to cancel the whole of an earlier one, it should contain a suitable cancellation clause that clearly indicates the intention to cancel all former Wills. This is called a revocation clause. If the new Will or codicil does not contain an express revocation clause, it may still cancel the earlier Will, but there may not be a complete cancellation.
You can destroy the Will by burning, tearing, or destroying the document in some other way. However, it must be the intention of the testator that he or she wishes to cancel the Will in this way and physical destruction without intention to cancel is insufficient.
A Will destroyed accidentally is not cancelled. If its contents can be reconstructed for example, if the testator or somebody else kept a copy the copy can be used to apply for a grant of probate but an affidavit must be sworn setting out the events that lead to the destruction of the original Will.
When you marry, any existing Will is automatically cancelled (revoked) and becomes no longer valid. If you do not make a new one, then when you die the law of intestacy decides how your assets are divided. Therefore, you will need to make a new Will as soon as you marry. You can make a new Will before the marriage provided it clearly states that it is made in the anticipation or contemplation of the marriage.