What do I need to know when making a will?
Firstly, have a good idea of what you’d like your will to achieve. Distribution of your worldly goods is likely to be high on the agenda, so listing out significant possessions such as property, vehicles and high-value items is a good place to start, along with any financial and digital assets you hold.
Next, these assets need to be allocated to recipients – the beneficiaries you wish to name in your will. Settling on an arrangement that you’re comfortable with prior to briefing your solicitor will save you time and money.
Along with the distribution of your assets, you may well have other wishes you’d like to specify with regards to the guardianship of children under the age of 18, the naming of trustees and executors, your funeral arrangements and more. Your solicitor can help you to reach the right decisions and prepare a will that provides you with the certainty that those decisions will be discharged fully and in accordance with your wishes.
Do I need a solicitor to make a will?
No. But if we rephrase that question to something more like, “do you need a solicitor to write and securely store a legally-valid will that is robust enough to withstand legal challenges?” – then the answer is most certainly YES.
There are any number of reasons why a will prepared by a qualified solicitor will deliver superior results and give you genuine peace of mind. Here are some of the most notable benefits:
The signing of your will is recorded and documented.
In the event that the will is challenged, your solicitor will produce this documentation as evidence. This is likely to prove decisive in court if, for example, a claimant alleges that you did not have the capacity to understand the will at the time of signature. A detail as simple as a documented and witnessed date for your will can make the difference when defending your will against a nuisance claim.
Safe storage of the will is absolutely essential.
It is crucial to store this documentation in a place safe from moisture, fire, theft and pretty much any other threat you can imagine. Solicitors are registered with the Law Society so that if they go out of business – or even if they fail to open for one day without informing the Law Society – representatives will arrive at their offices to seize and protect their legal documents. This level of protection is vital for a document as important as your will.
As a Giles Wilson client, storing your will is FREE.
A will writing service is most likely to charge you to store your will, with a level of security that is likely substantially inferior to that of a solicitor’s vault.
“Will-writing” services are unregulated.
Legal activities are divided into “reserved activities” and “non-reserved activities”. Will-writing is a “non-reserved activity,” so pretty much anyone can set themselves up as a self-styled will expert without experience, qualifications or any industry regulation. This option is barely a step up from a DIY will and doesn’t come close to the service you could expect from a solicitor.
A “will-writing” service can shut up shop at any time.
So you make a will with a will-writing service, and they go out of business. What happens to your will? Where does it go? Who owns it? The answer is that nobody knows because, as previously stated, it’s an unregulated industry. Solicitors are registered with the Law Society, meaning that whatever the fate of the solicitor’s firm, your documents are protected in perpetuity.
It is frighteningly easy to invalidate your will.
One cause for wills to be declared invalid is if there is evidence that any content has been added or removed from the document post-signature. So, if your will is stapled to something: potentially invalid. If your will USED to be stapled to something and the staple has been removed: potentially invalid. Even if there is evidence that a paperclip has been used and then removed: potentially invalid. This is just one set of examples that illustrate how fragile the validity of your will can be, and how important it is that it is handled by qualified professionals at all times.
Complex cases require a trained eye.
There are also certain situations where it’s especially advisable to instruct a solicitor to write your will. Common examples include if your estate is likely to be subject to considerable inheritance tax, if you have children from a previous marriage, or if you own property abroad. In fact, we’d go as far as to say that a solicitor’s involvement is essential to avoid any mishaps in these circumstances.
Solicitors are regulated to meet a standard that includes the timely execution of their work.
This regulation is of particular importance when time is of the essence, such as drafting a will for an elderly or terminally ill person. If you were due to become a beneficiary but missed out because the solicitor neglected to finalise the will in a timely manner, you may be able to make a claim against that solicitor for your loss. These standards are in place to add an extra layer of security and protection over a will.
What happens to a will if the solicitor closes?
Solicitors are guided by the Law Society, who have very strict measures in place regarding the preservation of documents should a firm cease to practice. The Solicitors Regulation Authority will seize and secure any documents from the incumbent firm if measures haven’t been taken for them to be transferred to a suitable location, though typically arrangements will be made for the documents to be moved to the vault of an active firm. For example, Giles Wilson has held the records for Francis, Thatcher & Co since that firm’s closure.
How much does it cost to make a will?
As a “non-reserved activity”, will-writing can be undertaken by any provider at any price. The unregulated nature of this aspect of our industry means that there’s nothing to stop unqualified will-writers offering a cut-price service.
However, neglecting to use a legal professional means this could prove to be a false economy. Taking the cheaper option now could end up costing your loved ones a great deal more than you manage to save today. That’s because hiring a qualified solicitor to write your will offers a substantial level of protection against invalidation, loss and legal challenges down the line.
Probate is the legal right to represent a deceased person in respect of dealing with that person’s estate. The term ‘probate process’ tends also to refer to the process by which the executor identifies the testator’s assets, communicates with beneficiaries, processes inheritance tax payments, closes the deceased’s bank accounts, liquidates the deceased’s assets, prepares accounts, documents all transactions and transfers assets to beneficiaries.
What are the requirements for a will to be valid?
The legal requirements for a will to be valid are as follows:
- The person making the will must be aged 18 or over (though there are exceptions for those on active duty in the armed forces)
- The will must be undertaken voluntarily and without undue influence from anyone else
- The person making the will must have the capacity to understand the document they are signing and be fully aware of the assets and people mentioned
- The will must be a physical document, made in writing
- The will must be signed by the testator in the presence of two witnesses
- The will must be signed by the two witnesses, in the presence of the testator and other witnesses to affirm that they have witnessed the testator’s signature
These are the minimum legal requirements for the validity of a will. It’s important to note, though, that ‘valid’ and ‘unassailable in a court of law’ are two very different standards. For example, does a will need to be dated to be considered valid? Actually, no – but a reliably recorded and witnessed date can prove vital in defending your will in court.
Who can witness a will?
For a will to be valid, it has to exist in writing and be signed by the testator (the person making the will) in the presence of two or more witnesses. So what are the requirements and restrictions around who can witness a will?
A witness must be:
- Physically present. This may sound obvious, but in the digital age, it’s worth noting that no form of remote link or electronic signature is considered valid. A will must be signed in accordance with the formalities set out in Section 9 of the Wills Act 1837, which obviously predates digital technology.
Perhaps surprisingly, beyond this restriction, the regulations are relaxed as to who can sign.
However, remember that the purpose of witnessing the will is to help ensure the document can be defended against any legal challenge. When selecting witnesses, it’s important to choose disinterested parties, and parties whose capacities to understand the process and sign according to their own will cannot be called into question.
That means you would do well to avoid selecting anyone that:
- Is under 18
- Is blind or partially sighted
- Has learning difficulties, is suffering from mental illness or whose capacity to understand the legal process is compromised
- Lives abroad or who cannot be tracked down promptly and easily
- Is unlikely to outlive you
- Stands to benefit from the will (see below)
Can a beneficiary witness a will?
Strictly speaking, there’s no law against this, but a beneficiary (or his or her spouse) would make a poor choice because, though their signature would not invalidate the will, it does invalidate any gift in the will to themselves as beneficiary. So a beneficiary can sign as a witness, and the will remains valid, but any gift to them in the will would fail.
Can an executor witness a will?
Your chosen executor can be a witness to your will, but it’s not a good idea because, should the will be challenged, it could be argued in court that they are not a disinterested party, given that they stand to gain from the will.
Can I specifically ensure that one or more of my children do not inherit? Could they challenge the will after my death?
There is no reason why you can’t stipulate that any specific person be excluded as a beneficiary to your estate. However, should that person be a child of yours who is dependent on you for their financial wellbeing, or is in financial straits, they may choose to make a claim on your estate. There is a chance under these circumstances that the court will look favourably on them and go against your wishes.