NO FAULT DIVORCE – IS IT TIME FOR CHANGE?
There is no doubt that having a Will in place is important. It’s something we should all do, at any stage of our life, rather than leaving it until we’re past retirement!
However, all Wills are not created equal.
You’ll find countless discounted packages online offering you the chance to draw up your own Will. Bbut if the Will isn’t correctly witnessed, has grounds to be challenged, or doesn’t cover any crucial details in sufficient depth, it might just be a very expensive piece of paper.
Given how many people in the UK don’t have a Will in place or have a Will that wouldn’t hold water if it were called upon, The Law Firm Group has created this brief guide to run through some of the most common mistakes we come across.
We always stress that, if you’re looking to solidify your wishes and who your beneficiaries are, it is critical to consult an experienced solicitor who can ensure that your Will is up to date and watertight.
What Areas of my Assets and Finances Need to be Covered in a Will?
Before we consider the most important things to include in your Will, it’s worth taking a moment to reflect on conditions outside of your finances.
Often we think of Wills as a list of inheritance recipients, but there are very many clauses that you can include that do not relate primarily to wealth:
This means that you choose who will look after your children, with parental responsibility, if you pass away. This is a vital consideration since your chosen guardian will be responsible for everything from education to medical treatment.
Not appointing a guardian can mean that the courts will appoint somebody, which may not be the same person you would have selected.
Safeguarding Vulnerable Relatives
You may have elderly or vulnerable family members or dependents that you provide for.
A Will can include instructions about Trusts, funds, or living arrangements, such as supporting that person if you are no longer able to.
If you have a joint mortgage or are named with a partner or spouse on a property deed, you may be able to stipulate in your Will what will happen with your share when you pass away. A lot depends on your specific circumstances.
In addition to these factors, it is best to take some time to think about your estate as a whole, to ensure that everything is covered.
It’s often apparent that cash savings, investments, property and cars might need to be provided for – but you’ll also need to consider overseas assets, joint ownerships and reviewing your Will periodically to keep it up to date.
The Most Common Mistakes That May Render a Will Invalid
Let’s look at some of the frequent issues we encounter with Wills, often which render them invalid.
1. Making Incorrect Assumptions
This is more common than you might think! If you have created a Will and assumed that your partner would automatically receive your assets, and then your children together, you might be mistaken.
You must include your surviving partner as a beneficiary. If you do not, they could receive nothing.
While your children could agree to transfer ownership of the assets to your partner or agree to amend the Will, this will require time and costly legal expenses to rectify, even if it is an obvious error.
2. Wills in Bad Condition
Another difficult error is where a Will has been prepared at home and has become worn, damaged or torn over time. Even having staples damage the paperwork can cause an issue, particularly if any wording has been obscured or isn’t legible.
In this situation, a Will might still be considered valid but the Probate Registry might require additional inspections be made before the Will can be executed.
3. Failure to Name Partners or Stepchildren
The probate laws are somewhat out-dated and do not automatically recognise partners’ rights outside of marriage or a civil partnership. Likewise, they do not have any automatic recognition of stepchildren, even if you have been their primary parent and raised them in your home.
You must keep your Will updated and ensure that your desired beneficiaries are explicitly named to avoid any of your loved ones being left without an inheritance.
4. A Will That Isn’t Legally Valid
A Will must be executed in accordance with the Wills Act 1837.
There are several conditions under which a Will can be contested, and while this can be a costly process, it is not unheard of to have a Will rejected on the grounds of:
- The deceased did not have the capacity to understand what their Will said.
- The deceased did not approve terms included within the Will.
- One of the beneficiaries put ‘undue influence’ on the deceased for their benefit.
- The Will not being executed correctly in line with the law.
For example, if a person with dementia amended their Will, during a period of improved health, it would be possible for a non-beneficiary to challenge that Will on the grounds that the deceased did not have the mental capacity to make the relevant changes.
In this scenario, an experienced solicitor would have made recommendations to authenticate the Will writer’s capacity and verify their wellbeing at the time of the amendments.
Likewise, suppose a Will is significantly weighted in favour of one beneficiary. In that case, another could challenge that if they believe there was any coercion – although this is difficult to prove, and such a case would be unusual.
More likely, the Will isn’t valid simply because it hasn’t been appropriately signed.
This error can be extremely frustrating, but if the deceased did not sign their Will with two witnesses physically present, the Will is invalid.
What Can I do if a Family Member’s Will is Incorrect?
If you believe that a family member has created a Will incorrectly, or failed to update it and inadvertently left assets to a beneficiary that they had not intended, it is possible to contest a Will.
There can be steep levels of proof required, and you would need to evidence one of the scenarios mentioned earlier.
Contesting a Will can also be extremely expensive, depending on the scope of the hearings. Costs in this sort of contentious scenario can escalate fast. Given that such disputes are usually between family members and concern significant amounts of money, it is a scenario that nobody would wish for.
Therefore, The Law Firm Group strongly advises everybody to think about their Will.
- If you don’t have one, it’s time to put one in place.
- If you have a Will and it was written some time ago, it’s wise to review it.
- If you created a Will but your circumstances have changed, an update is essential.
Get in touch with our teams at any of our UK offices, and we’ll arrange a good time to talk about creating or updating your Will to ensure that, when the time comes, your wishes will be borne out just as you require.