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The common will-making mistakes you may have made

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Written by: Matthew Evans
10/06/2016
Simple mistakes when writing your will can be costly and difficult to resolve. Below, Matthew Evans of law firm Hugh James reveals 10 common blunders and how you can avoid them.

1) Involving a beneficiary in the will writing process

It’s natural to ask for help and input of a family member or friend when taking a big decision such as writing a will. But if you intend to make that person a beneficiary of your will there is a danger that in years to come somebody else may interpret that help as something more sinister.

It could lead to the will being challenged on the ground of ‘undue influence’. If your solicitor banishes your friend from accompanying you at your meeting, they’re not being rude. rather it’s for both your benefit and theirs to hopefully avoid accusations of foul play later.

2) Using vague language

What seems like perfectly clear language to you may create huge issues many years later when it’s time to interpret your wishes. Wills don’t need to be written in ornate language but they do need to be clear and unambiguous to an objective third party. If your will is unclear this could give rise to costly ‘construction’ proceedings where the court is asked to determine what it means.

Make sure your will is professionally drafted and well suited for your specific requirements.  This can also ensure that your will is ‘future proofed’ and drafted so as to take into account, for example, the birth of more children or a house move.

3) Not involving a GP/medical practitioner

Legal practitioners have received clear judicial guidance (known as ‘the golden rule’) that if the person making a will is an older person then it is best practice to obtain a medical certificate of their capacity to do so.

Wills are often challenged by disappointed parties on the grounds of lack of capacity but a contemporaneous GP note confirming capacity will nip this in the bud. You should therefore give this serious consideration and you should discuss it with your solicitor when giving instructions for your will.

4) Not keeping a note of the reasons behind the will

We can leave our estate to whomever we want and can therefore make outlandish and unexpected provision in our wills. But a degree of pragmatism is also required.

If, for example, you wish to exclude one of your children from your will then you must also expect that your child will be unhappy about that decision and could try to challenge it.

For that reason, a detailed contemporaneous note accompanying the will setting out the reasons for your decision will see off any potential challenges.

5) Making promises that won’t be kept

If you’ve promised someone that you’ll make provision for them in your will and that person has relied on those promises to their detriment then in this circumstance, the law may intervene and override the will to give effect to the promises.

If you think this may apply to your circumstances, it’s best to take legal advice as soon as possible so there’s a chance to change the arrangement while you still can.

6) Not executing the will properly

The technical requirements for creating a valid will are not particularly complex but they are rigid with no discretion allowed.

A very common mistake is not ensuring the two witnesses to the will are present together when it is signed.  Often this only comes to light after the person who wrote the will has died, leading to it being set aside.

You can avoid this by taking advice from a solicitor about how to execute your will correctly or by asking them to oversee the execution for you.

7) Not executing the will at all

Another very common scenario is where a draft will has been prepared but never actually executed. Life gets in the way and we all have things we’ll do ‘tomorrow’, but it’s crucially important to finish the job. An unexecuted will holds no legal weight whatsoever.

8) Not keeping the will updated

Nobody likes facing their own mortality and so there is an understandable temptation to write a will, put it in a drawer and think ‘job done’ forevermore.  Circumstances change, family dynamics shift, friendships come and go and assets fluctuate.  Wills need to be reviewed fairly frequently and certainly following major life events such as the birth of a child, moving house etc.  Failure to do so could mean that when you die your will does not reflect your wishes at that time.

9) Not rewriting the will after getting married/entering into a civil partnership

This point is about more than simply keeping your will updated.  Unless your will is specifically and expressly written in contemplation of your marriage to or civil partnership with a particular person, it will automatically be revoked the moment you tie the knot.

It’s imperative a new will is drafted following the big day, despite the fact this might be the last thing on your mind!

10) Doing it yourself

We, as solicitors, are often asked ‘why should I pay a solicitor to draft me a will when I can buy one myself from WH Smith and fill it in’?  The answer is that by engaging a solicitor you are paying for the advice, support and transparency that accompanies the will, not just the document, which comes at the end of the process.

Wills are not ‘one size fits all’.  While do it yourself wills may seem like a cheap option, if (as they often do) they give rise to one of the issues outlined in this list then the cost involved in rectifying them (if even possible) will almost certainly far outweigh any potential upfront saving.

Matthew Evans is a partner and head of wealth management services at Hugh James

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