Top 5 things to know about wills

20 Oct 2023
Davina Puran

Private Clients, Wills, Trusts and Probate

Making a will is one of the most important decisions you can make to safeguard the future. A will ensures your legacy is managed as intended and provides peace of mind to both you and your loved ones. Our Private Client team have outlined 5 key points to consider.

1. It is never too early to make a will

Making a will is not always on the top of everyone’s priority list. You may feel you are not at the stage in your life to make a will, are too young to make a will or perhaps, you just do not want to think about death. Nonetheless, you will no doubt want to ensure that your assets pass to your chosen loved ones.

The consequences of not making a will means your estate passes under the intestacy rules, which are a default set of provisions that apply when someone does not have a will, or one cannot be found.

The rules benefit certain categories of people in a specific order of priority.  These people may (or may not) be who you intended to benefit and may mean that inheritance tax is payable which may not be the case if you make a will. It is therefore imperative you record your wishes in a will so your loved ones can benefit in the way you want them to.

2. You should regularly update your will

Your circumstances may change over the years.  You may find that you have lost contact with the executor(s) and/or beneficiaries in your current will.  In the case of a professional executor, they may have now retired from practice and be no longer able to act as your executor.  You should regularly update your will to ensure it reflects your current intentions.

We suggest where your will names executor(s) and/or beneficiaries that have changed addresses, you keep a note with the will setting out their current addresses.  If your will is stored with a solicitors practice, you could ask your solicitor to keep this list with your will in their safe storage facility.  That way, your executor knows how to get in contact with beneficiaries when the time comes to deal with your estate.

3. Holding a copy of the will is never as good as the original

You may have lost your original will but still hold a copy.  If you do not hold the original will, this can cause complications, particularly if a grant of probate is needed to administer your estate.

You can make a special application to the Probate Registry to apply for a grant of probate with a copy of the will but it will be at the discretion of the Probate Registry to accept this.  The presumption where an original will is held by the person who made it and cannot be found  is that is has been revoked.  The person applying for probate must provide evidence to rebut this presumption and explain why only a copy is available.

To avoid unnecessary time delays, it would be easier to make a new will, while you still can and have it stored with your solicitor.

4. Make sure your will is validly signed.

A valid will must be in writing and signed by the person making the will, known as the testator, in the presence of two independent witnesses.  Independent means someone over the age of 18, not related to you and importantly, not benefitting under the will.

5. Do not destroy older wills

The natural assumption when you make a new will is to destroy the old one.  After all, you have a new will, why keep the old one?

Have you thought about what would happen if your current will is challenged?  For example, if you leave a family member out of the will, who had an expectation they would be included in the will?  That family member could argue you lacked capacity when making the will, or that you were being coerced by other family members to make the will.

By keeping the wills you have made over the years together, you are creating a paper trail of your intentions.  For example, if you left someone out of your current will and that same person was left out of your last will, this shows a pattern that you clearly did not want this person to benefit from your estate.  In this situation, we suggest you write a letter of wishes explaining why you have left that person out of the will. The letter can be kept with the will.

 There is nothing that can preclude someone making claim against your estate when you pass away, but you can put in place evidence of your intentions to fend off any later claims.

Harold Benjamin specialises in the drafting of wills. We believe that no will is a ‘one size fits all’ and regularly meet with our clients to understand their relationships and circumstances to best protect you and your assets.  Please contact our private client team for more information.

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