Free Wills Month offers peace of mind and financial security

The importance of securing one’s legacy and ensuring peace of mind for loved ones cannot be overstated; this event provides people with a valuable opportunity to protect assets and take control of their financial future.

Creating a will can seem like a daunting task, but doing so is an important step in planning for a family’s future, safeguarding their legacy. Chloe Jones, Legal Adviser at DAS Law, answers the key questions surrounding wills, such as when a will can be contested or changed.

Do you require a solicitor to make a will?

No, a solicitor is not required to draft or witness the drafting of a will. Individuals can certainly choose to draft their own will, or they may even consider using local charities who offer the service free of charge.

However, it is advisable to get legal advice on the matter to ensure that your wishes will be met after your death. Misunderstandings and disputes can arise if there is confusion or mistakes are included within the will; this can become costly for those dealing with the probate, and can even reduce the money included within the estate. Although a solicitor will charge for the drafting of a will, they will also provide advice and guidance on how best to avoid any issues.

What are the key considerations when making a will?

When drafting a will, you will need to consider the following.

• Who is going to administer your estate and carry out your wishes - these individuals will be known as your executors;
• Any funeral wishes you may have;
• Arrangement wishes for any dependants;
• How much money and what property and possessions you have - this can include savings, pensions and any investments;
• Who you want to benefit from the will - these will be known as beneficiaries. It may be worth writing a list of those who you wish to include.

What happens to a person’s estate when they die without a will?

Dying without a will is referred to as dying intestate. There are rules which dictate how the estate is to then be allocated if an individual dies intestate. These rules may not distribute the estate in line with your wishes; if this is would be the case, it would be best to draft a will.

Partners who are unmarried or have not registered a civil partnership cannot inherit from each other in these circumstances. This means that only married partners, civil partners and some other close relatives can inherit under the rules of intestacy.

It is also worth noting that partners who have separated informally can still inherit under these rules. If there are surviving children, grandchildren or great grandchildren these will also potentially inherit.

Therefore, if you have specific wishes as to who inherits what, it would strongly be recommended to draft a will that would set out all of your wishes.

Are spouses or family members automatically beneficiaries of an estate?

Spouses and family members are not automatically beneficiaries of an estate. A will allows you to direct how your assets are distributed. The beneficiaries will only be those mentioned within your will.

However, if you wish to not include a certain family member, it would be best to take legal advice. This could cause issues at a later date for the executors, and the individual may have a claim against the estate. Should you die intestate – without a will – then the estate will be distributed as per the intestacy rules above. You can find out what will happen to your estate if you die intestate here.

An individual may be able to pursue a reasonable financial provision claim if they feel they had depended upon the will creator financially, and that they have not been provided for. The Inheritance (provision for family and dependants) Act 1975 sets out who is entitled to make a claim on these grounds. This is normally anyone who can show they were being supported financially by the will maker, such as a spouse, civil partner, children or cohabitees.

Under what grounds can a will be contested?

There are several grounds for contesting a will. These are:

• Lack of testamentary capacity;
• Undue influence or coercion;
• Lack of knowledge and approval;
• Under the Wills Act 1837;
• Forgery and fraud.

If the individual who has died did not have sufficient mental capacity at the time the will was drawn up, then this would be called lack of testamentary capacity. This means that the person making the will must understand what they are doing, what they are distributing, not have a disorder of the mind and must understand the implications of including or excluding someone from their will.

In order for a will to be valid the individual has to understand and approve the contents. This is normally presumed when the will is executed correctly and the individual has necessary capacity, but there are a few circumstances where the court may require evidence to provide this if any disputes arise. When there is suspicion that the individual did not know or approve the will then the people who believe the will to be valid are the ones who would need to prove this.

If someone has interfered with the creation of the will, applying any undue influence on the distribution of assets against the individuals wishes, this can also be grounds for contesting the will. It can also be where someone has coerced or forced someone into changing their will for their own benefit.

If there is a case where the entire will or signature of the person who made the will is forged, then the whole will shall be deemed as fraudulent and therefore invalid.

A valid will must comply with section 9 of the Wills Act 1837, and must be in writing and signed by the individual making the will. The individual has to have also had the intention of creating a valid will and the testator must sign, or acknowledge their signature, in the presence of two witnesses. Both witnesses must sign the will, and acknowledge their signatures, in the presence of the testator.

You can read more about contesting a will here.

Can a will be changed at any time?

Yes, a will can be changed at any time before the testator’s death; however, the only way you can change a will is by making an official alteration called a codicil. A codicil must also be signed and witnessed the same as a will.

It is recommended that if you are making any major changes, you should have a new will drafted. Your new will should explain that it revokes all previous wills and codicils.

When can a will be automatically revoked?

A testator can revoke a will by:

• Marrying or forming a civil partnership;
• Making a new will or a codicil;
• Making a written declaration executed in the same way as a will; or
• Destroying the will.

Individuals can sometimes revoke a will without intending to do so, this is commonly seen when they marry or enter into a civil partnership. In all other circumstances the testator must intend to revoke the will.

It is, however, best for the individual to revoke a will by making a new will or codicil. Having the revocation in writing allows the individual to clearly state what their intention is, which can help avoid issues further along down the line.