Why make a will?

 

What is a will?

It is a legally binding document stipulating how your assets and property are to be disposed of on your death.

Why make a Will?

It is difficult to face up to your own mortality but it is important as if you do not plan what is to happen to your property (your “estate” ) by making a will then your property will be allocated by the rules of intestacy (i.e. the rules setting out who inherits what and how much which apply where there is no will). If you did not want your estate to be divided this way failing to make a will is a serious  mistake.  For example unmarried couples do not inherit anything under intestacy, unless they are formal civil partners.  Where there are children, a spouse will only inherit the first £250,000 and will only inherit everything where the person who died left no children, parents or close relatives. Also if you wanted to leave specific items of property to someone this will not happen on intestacy and instead these will probably be sold. You also have to consider the upset this  failure to make a will might cause to loved-ones who otherwise might have thought they were going to be the beneficiaries. By making a will you can ensure that your assets go to those you wish should have them.

There are some assets that cannot be given away in your will (eg. property you hold in joint names usually passes automatically to the other joint owner) but most of your property can be dealt with by a will.

Who can make a will?

Generally speaking, anyone over the age of 18 and of sound mind. Note:

If someone is mentally incapable of doing so the Court of Protection may approve the making of a will (or codicil) under the Mental Health Act 1983.

Members of the armed forces under the age of 18 can make a Will

What makes a will valid?

In order for it to be valid it must comply with certain legal formalities.

  1. It must be in writing
  2. It must be signed by the person making the will (the testator)
  3. The signing must be done in the presence of two witnesses who then sign the will in the presence of the testator.

Who can be a witness?

Anyone who is of sound mind and not blind.

Who cannot be a witness to a will?

A beneficiary in the will or married to (or be the civil partner of) a beneficiary

In these circumstances the will remains a valid and legal document, but the gift to the beneficiary is void and cannot be paid.

Example:

Ann is a widow with no children or close relatives. Just a brother she fell out years ago and whom she is determined is not to get anything. Anne has 2 close friends Peggy and Sally and wants them to inherit everything equally.

Ann arranges for the will to be signed and witnessed. Ann is aware that neither Peggy nor Sally should witness her will but does not realise that their husbands Bob and Peter should not witness the will either. Ann dies but the gifts to Peggy and Sally are void because their husbands witnessed the will.  Ann’s  estate will pass under the intestacy rules (the rules which apply where there is no will or no valid will) to the brother she did not want to get anything.

For more on probate click on the drop down or revisit derby probate solicitors.