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Will making errors to avoid

Lester Aldridge Solicitors provide a useful checklist of key considerations for when you make or update your will 

This latest article in the Life Matters series by Lester Aldridge is another really useful checklist, about a subject which concerns every one of us at some stage in our lives, depending on our circumstances often more than once. Not only when we make our will for the first time but also when we update it later on, we should beware the five pitfalls listed and yes - for something so important, take professional advice!

Five will making errors to avoid  

family on sofa all happily together

Every year, in England & Wales, wills are challenged and declared invalid.

If that occurs, it can mean that either an earlier (and possibly outdated) will has to be admitted to probate, or a person will die ‘intestate’. Intestacy means when you die without having a will and legislation (known as the Intestacy Rules) then dictates how your estate assets will be distributed.

For some people intestacy might carry out their wishes but, in most cases, intestacy is not desirable e.g. a cohabiting couple who are neither married nor have a civil partnership have no automatic rights under the Intestacy Rules. This can mean that, if one cohabiting partner dies, their surviving partner will receive nothing from their estate.

There are many reasons why wills are invalidated or probate disputes occur. The list below is not exhaustive, but it highlights five common reasons why will and probate disputes can occur.

  1. Not signing correctly

When a will is signed, a specific procedure has to be followed using independent, adult witnesses. Sometimes, wills are declared invalid simply because they are either not witnessed correctly or the wrong witnesses are used e.g. the spouse or civil partner of the person making the will should not be used as a witness. If you invest time and money preparing a will, it is important that is signed correctly.

  1. Choosing the wrong executors

Executors look after estate assets and distribute them to the beneficiaries named in a will. Although choosing the wrong executors will not invalidate a will, it can cause significant problems for an estate, so it is important to choose an executor who is trustworthy, has time available to deal with your estate and also understands your wishes. Executors disputes are also not uncommon, so if you have more than one executor, it is also vital that your executors will be able to work together effectively. If you choose family members as executors who are unlikely to be able to make decisions together, that is a potential risk to your estate.

  1. Not considering the effects of ill health

To make a valid will, a person must have the relevant mental capacity (known as testamentary capacity). This capacity can be affected if you suffer from any ill health or periods of extreme stress (e.g. a recent bereavement) at the time when you make your will. It is therefore important to consider when is the best time to make a will.

If your capacity may have been adversely affected by your health or circumstances, and making a will can be delayed until your health either improves or you feel more able to deal with making person signing documenta will, that may be preferable.

If not, you may want to arrange a capacity assessment at the time when you make your will. This can help to minimise the chances of your will being queried or challenged in the future. This solicitor preparing your will should be able to advise you about obtaining or arranging a testamentary capacity assessment.

  1. Being influenced by others

If your will does not reflect your wishes, but the wishes of others, it can be invalidated, e.g. if a friend or relative places pressure upon you to make your will in a particular way. It is, therefore, critical that anyone making a will is free from any pressure or threats.

If someone is being pressurised to make their will in a particular way they should discuss this with their solicitor or consider contacting the Police or Action Fraud (https://www.actionfraud.police.uk/ or telephone 0300 123 2040).

  1. Excluding relatives or financial dependants

In England and Wales, you can leave your estate to whomever you like (within reason). However, if you exclude financial dependants or close relatives from your will e.g. a spouse or child, they may be able to bring a claim against your estate under the Inheritance (Provision for Family & Dependants) Act 1975. 

This type of claim does not invalidate a will, but it can affect how an estate will be distributed. It may also cause delays to the administration of an estate, incur costs and affect family relationships.

If you don’t wish to make provision in your will for certain financial dependants or relatives, it is important that you discuss this with your solicitor at the time when your will is made. The reasons for excluding someone from your will or leaving them less than others can then be documented and explained. This cannot prevent a claim from being made against your estate, but it may help to manage the risk involved.

Will or no will?

So, if a will can be challenged, why make one?

It is important to remember that not every will is challenged or invalidated, and dying without making a will can cause problems for your estate.lady solicitor, Victoria Jones

Wills also do not just deal with your financial and other assets. They may also include funeral wishes or provisions about how your minor children will be taken care of in the event of your death.

Put simply, provided that a will is made effectively and also reviewed and updated as your circumstances change e.g. you marry or have children, it is likely to provide the best information about your wishes and also what you want to happen to your assets when you die.  

Our Disputed Wills Team advises in will validity and probate disputes

This article was written by Victoria Jones, pictured opposite. 

Free consultation on any legal matter

Lester Aldridge Solicitors are based in London, Southampton and Bournemouth - where the office covering the New Forest is situated conveniently close to the main Bournemouth train station. Their specialist teams in the various fields of law will be happy to advise and assist you, starting with a completely free initial consultation during which you can decide whether you feel able to trust them with your confidential information.  For more information please click here. Consultations are also available via virtual meetings : advice is available through phone, email, Skype and Zoom.Life Matters from Lester Aldridge Solicitors - logo

Life Matters: Lester Aldridge Solicitors on a wide range of legal matters

Life Matters is a regular monthly feature on Lymington.com, which covers a wide range of legal subjects and is always written by one of the Lester Aldridge team. You can see a list of all published articles by clicking to the Lester Aldridge Solicitors webpage on Lymington.com here.

Other Life Matters Articles by Lester Aldridge - click here

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