10 common Will mistakes and how to avoid them
Will mistakes, as costly as having no Will at all? Writing your Will is incredibly important – we all know that. So important that around two-thirds of the UK population have yet to get around to it. For anyone that has read this blog before I KNOW, I say it all the time but it’s a staggering figure the thought of which blows my mind (again I know I would say that we are a Will writing company). It’s baffling though.
So, you’ve written your Will. You’ve taken the time to think things through carefully got it all down on paper, signed and filed. Job done. Or is it…
Will mistakes – are they THAT bad?
Well.. potentially. Some mistakes can totally invalidate a Will or it may be that the deceased wishes are misinterpreted or ignored. Mistakes in a Will can also open a door for the contents to be disputed or just might simply mean that it won’t deliver the outcome that you would want it to. And, as Will mistakes are generally not discovered until the testator (the person whose Will it is) has died it means their surviving friends and family are left to fight it out.
10 most common Will mistakes and how to avoid them
1 – Incorrectly signed and witnessed
This the number one most common mistake and the one that will completely invalidate your Will. In order for your Will to be legally binding your signature must be witnessed by TWO people who:
- Must be present at the time of signing
- Are not named as beneficiaries in your Will or are married to someone who is
- Are UK citizens aged 18 years or over
2 – Out of date
Any big life event should prompt you to review your Will. Birth – should you gain new children or grandchildren. Marriage and divorce – don’t forget a new marriage invalidates any existing Will. In the case of divorce your ex-spouse is treated as if they have died (which should please some people!) and any gift they would have received falls into your estate’s residue and will benefit your residuary beneficiaries. If you left everything to each other than it will be as if you have died intestate.
3 – Appointing inappropriate executors
Examples of inappropriate executors – someone who lives overseas, anyone under 18, someone who just really doesn’t feel capable of doing it or want the responsibility. This will just hold up what can already be a protracted process.
4 – Not making proper exclusions
It might sound obvious but should you want to exclude anyone that has a legal claim to your estate you need to make sure you’ve done it properly. Often when there is a whiff of money estranged family members miraculously slide out of the woodwork to state their ‘rightful claim on what’s theirs. In order to ensure your wishes are clearly understood you will need to leave a letter with your Will – in this, you must state who you are excluding AND your reasons why. Should the person concerned contest your Will this letter will be passed to the judge who will decide if they have a legitimate claim. Sadly, cases such as these are becoming more prevalent if you do want to exclude anyone please seek legal advice.
In order to ensure your wishes are clearly understood you will need to leave a letter with your Will – in this, you must state who you are excluding AND your reasons why. Should the person concerned contest your Will this letter will be passed to the judge who will decide if they have a legitimate claim. Sadly, cases such as these are becoming more prevalent if you do want to exclude anyone please seek legal advice.
5 – Not accounting for debts
Mortgages etc can eat up a chunk of your estate. So, to prevent any financial complications it’s an idea to leave bequests as percentages of the estate rather than a specific sum.
6 – Failing to appoint guardians
For parents with young children one of the most important reasons to make a Will is to name the people that you would like to care for your children should you die. Don’t forget about the children.
7 – DIY Wills
Just write it on the back of an envelope and sign it whats the worst that could happen. Well, for one it’s not legally binding and two it’s not legally binding (yes I know I’ve repeated myself but it’s VERY important). Wills follow some general rules of what you say and how you say it. Should you not follow these rules, your language is ambiguous, your intentions not clear etc it could mean that your instructions won’t be followed or even that your Will is invalid. You will have died intestate.
8 – Failing to make provisions for if a gift fails
The most common reason a gift will fail is if your beneficiary predeceases you. Be clear in what you would like to happen by including a gift over clause. For example, if someone has died you might wish their share to go to their children. Should you not make provisions then failed gifts fall back into your residual estate to the benefit of your residual beneficiaries.
9 – Forgotten assets
Don’t you just hate it when that house in the south of France just slips your mind, no us neither. BUT many people do simply forget about assets, there are worse problems to have of course. However, any assets not included in your Will will be dealt with in accordance with the laws of intestacy and could be liable for inheritance tax..
10 – Not having one in the first place
Perhaps the most costly mistake of all…! Dying intestate is a major pain for the people left to deal with the estate. Not only can it take a toll emotionally it can become costly. Read more about dying intestate here.
Challenging Will mistakes
Some errors, such as incorrectly or even failing entirely to sign and witness your Will or, if the testator is deemed to not have the capacity to make a Will or fraud is suspected the Will is rendered it invalid. Some errors, however, can be corrected by the court. The courts do their best to ensure that the Will delivers the outcome that the testator intended and, are actually becoming more pragmatic in their approach to Will disputes.
You have six months from the date the Grant of Probate was obtained in which to bring a challenge to court. If you believe that the mistakes are the fault of the solicitor or organisation that wrote the Will you will have a claim for professional negligence which you will need to bring to court within 6 years.
How not to make Will mistakes
As you would probably guess our advice is to seek legal advice when drafting your Will. Will mistakes are easy to make and could be very costly. Your Will on of the most important documents that you will ever write and it is imperative that it delivers the outcome that you would wish.
Because you should decide who inherits your estate
If you do not have a Will or have one that needs updating Future Legal Services offer a comprehensive estate planning service.
We believe writing your Will should be as easy, affordable and convenient as possible. That’s why we keep things simple. No gimmicks, no free pens, just relevant, practical advice to help you plan for the future without taking up too much of today – just 90 minutes in fact.
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