Making a Will is one of the most important things you can do for your loved ones. It ensures that your wishes are carried out after you die, and it can also help reduce conflict and stress for those you leave behind. However, making a mistake with your Will can have disastrous consequences.
Wills can be either straightforward or complicated, depending upon your circumstances. Whether your Will has been drafted by a Solicitor, a ‘will making’ service or even if you have made it yourself, certain formalities must be followed. If these are not followed, your Will will be invalid. This blog post will discuss some of the most common mistakes people make with their Wills and how to avoid easy mistakes with your Will.
Have it correctly signed and witnessed.
The Will Act 1837 specifies that a Will must be signed by the Testator (the person making the Will) in the presence of two independent witnesses. Choosing the proper witnesses is crucial.
- The witnesses must be 18 years old or over and must not be blind.
- They must be of sound mind.
- The beneficiaries in your Will (or the beneficiaries’ spouses) must not be witnesses, as any gifts to them in the Will would then be void.
The witnesses must see you sign the Will. You must see them sign the Will, and they must see each other sign it. In other words, you must have all three be present at the same time.
Make sure that the person making the Will has the capacity to do so.
To make a valid Will, you must understand what you are doing when you make a Will and the consequences; this is known as having Testamentary capacity. A will can be challenged if there is any doubt about the Testator’s mental capacity to make a Will, and if proved that the Testator does not have mental capacity, the Will is invalid. Defending a claim on the estate may involve providing witness statements and giving evidence in Court. If there is any possibility that the Will could be challenged on this basis – even if you believe there is no basis for such a challenge – it is advisable to have your Will professionally drafted.
Make sure the old Will is destroyed.
Although a new Will revokes a previous Will, you should ensure that the previous Will is destroyed so that it cannot be submitted to probate in error. A Will is automatically revoked in certain circumstances, e.g. upon marriage, unless the new Will makes express provision to the contrary.
Make sure your new Will is correctly drafted.
A poorly drafted or incorrectly executed Will can be worse than having no Will at all. It may not only frustrate the Testator’s wishes but can lead to lengthy and expensive litigation with the effect of depleting the assets in the estate. Unfortunately, problems with Wills are often not discovered until the Testator has died and the Will is submitted to probate.
Understanding that making a Will is not expensive.
Straightforward Wills that are professionally drafted are relatively inexpensive; typically, you will be charged £200.00 to £300.00 plus VAT, and solicitors who have drafted the Will will not usually charge for witnessing your signature. Your choice of witnesses is crucial as signing your Will is one of the most important steps in the process and mistakes here can lead to the Will being invalid. A Witness must be over 18 and of sound mind. A beneficiary cannot witness a Will although they can act as Executors.
Do not attach or pin anything to your Will
When the Will is submitted to probate the Probate Registry will examine it for any signs of tampering. To avoid expensive delays you should not attach anything to your Will, whether by staples, or paperclips. If you wish to leave a Letter of Wishes with your Will you should leave it in the same envelope but do not attach it to the Will.
Make sure you don’t make the same mistakes
The best way to ensure you have a valid, effective Will is to discuss your requirements with a Solicitor. All Solicitors are professionally qualified and regulated by the Solicitors Regulatory Authority. We are always happy to discuss your situation if you wish to make or revise a Will.
We are based in Warrington town centre and there is on street parking outside our offices and in adjacent streets where you can park free of charge for up to an hour.
Storage of Wills
There are a number of options available for storing your Will. Click here for further information. We store all Wills we have drafted free of charge.
For more information about our Will drafting service or to discuss your requirements, click here or email diane@dsmlegal.co.uk, or call now on 01925 937070. Alternatively, fill out our Contact Form and we’ll contact you.
The contents of this article are for general information only and do not constitute legal advice.