Many people are under the common misconception that a will is a straight forward document that is simple to write and execute. This however is not the case and there is more to think about when drafting a will than merely who you want to have your assets when you die.
There are so many things that can go wrong when drafting wills, which could result in the will being invalid or making provision for something that was not intended by the person making the will (the Testator).
Over recent months many will writing companies have engaged in drafting wills for individuals, however many people are unaware that will writers can be unqualified and the only regulation is voluntary membership of the Society of Will Writers so there is more opportunity for unregulated will writers to practice. Such companies may initially offer wills at a lower cost than qualified solicitors, but it is becoming increasing common that those using such companies are required to incur additional hidden costs during their lifetime and on their death. In addition, you could be subject to badly drafted, often invalid, wills and be left with nowhere to turn and no mechanism to make a complaint. It is worth noting however that a lay-person offering a will making service is judged on the same standards as a qualified solicitor doing the same job.
In addition to will writing companies, it is increasingly common for individuals to try and write their own wills, otherwise known as a DIY will. The risks of bad drafting, failure to execute the will properly and other similar errors increase the potential for such a will to be invalid. When drafting a will yourself there may also be additional considerations, such as the appointment of guardians for young children, the appointment of executors and potential inheritance savings, that may be overlooked.
It is therefore important that the correct advice is taken when preparing a will to ensure that it is legally binding and reflects the wishes of the Testator. A badly drafted will can result in a whole host of problems on the Testator's death, including a potentially intestate estate if the will has been drafted incorrectly or has not been validly executed.
Legislation sets out rules as to how a will should be executed for it to be valid, including specific requirements for the document to be signed and witnessed. A few of the main points are listed below:
- 1. The Testator must read and understand the terms of the will.
- 2. Two witnesses must witness the signature of the Testator. These witnesses must be over the age of 18 and must not be part of the Testator's family, be mentioned in the Will or be married to such people.
- 3. When everyone is assembled together in the same room the will should be dated and signed by the Testator with his or her usual signature.
- 4. It is not necessary for the witnesses to read the will, only to watch the Testator sign it.
- 5. When the Testator has signed the will, each witness in turn must sign and print their name and complete details of their address and occupation.
Other issues to be aware of when drafting wills are the Testator's ability to enter into the will, taking into account their ability to understand the document, any undue influence or pressure they may be under to execute the document and their knowledge and approval of the will.
It is important that you seek proper advice before executing a will to ensure that it will be valid on your death and reflects your wishes. Should you require any further information about wills please contact the Private Client Department.
Disclaimer: Anything posted on this blog is for general information only and is not intended to provide legal advice on any general or specific matter. Please refer to our terms and conditions for further information. Please contact the author of the blog if you would like to discuss the issues raised.