Guidance on writing a will

Formalities

 A Valid Will:

  • Must be in writing
  • Signed by the person who has written the will or any other person in the presence of the testator (person writing the will) and on his directions/instructions
  • Two witnesses  must  also attest and sign the will 
  • Please Refer to Sample wills for Practical Examples

Beneficiaries

The intended beneficiaries must not sign and witness the will. Where a beneficiary witnesses a will, he will not get his gift. The failed gift will be part of Residuary Estate. The Will will remain as a valid will.

Disclaiming

A beneficiary can disclaim a gift but must disclaim the whole gift and must not have received any benefit from it, where he refuses to accept any gift.

Excluded from Will

A person is entitled to leave his personal property to anybody he or she likes. The law does not impose any restrictions. However, the following properties/items cannot be passed over or left in the will. So when writing a will one should not include these items

  • Joint property held as beneficial Joint tenants. If you own a property as a Joint tenant you can not leave this property in a will. On the death of a testator the ownership of the joint property transfers to the remaining Joint Tenant. Joint Property also includes Joint Bank Accounts

Example

John and Linda are Joint Tenants of 20 Sample Road, London. John is writing his will and wants to give his Share to his brother or Son. John is not allowed to do so as the property is jointly owned by John and Linda. On the death of John, Linda will be the sole owner of the property and John’s share will transfer to Linda.

Linda later on, as a sole owner can leave her property to anybody in her will

This Rule does not apply where a person holds a Tenancy in Common

  • Statutory nominated properties for example Pension funds cannot pass on in a will
  • Life Insurance on Trust for the benefit of another party such as wife, Children etc ( However, a simple life insurance on testator’s own life can be part of a will)
  • Death Bed Gifts are outside the will ( Please refer to Death Bed Gifts in Step 1)

Must Have Clauses

Executors

The person writing a will must appoint a person or persons who he/she entrusts with the distribution of his/her estate. Such person will be Personal Representative of the Testator and also referred as Executors

Example

I appoint my wife Margaret Jones and my son Tom Jones of 24 Sample Close to be my executrix and executor of this my will.

Residuary Estate

The person writing a will must state what will happen to a residuary estate ( estate which cannot be transferred for some reason)

Example

All my Residuary estate to my Son Robert

Survivorship Clause

To avoid double administration of the estate, where an estate  is left to family members, such as Husband, Wife and Children, a survivor clause is essential to avoid extra administration

Example

I GIVE all of my estates to my husband John PROVIDED THAT he survives me for a period of twenty-eight days.

Gifts to Child or Children

Where a person leaves his estate to his child(ren) but before the execution of the will the child dies, such gift does not fail. Any gift to a child(ren) does not lapse but passes to their UNLESS a contrary intention is shown. This rule applies only to children of the person who has written a will.

Example

John left £100,000 for his younger Son Adam in a will, However, Adam died few years before John’s death. The gift will pass on to Adam’s children (if any). If Adam did not have any kids the gift of £100,00 will fail and will be transferred into the residuary estate of John.

Terms of the Will

The person who is writing a will must make sure that the terms of the wills are simple, clear and comprehensive. For example

  • I leave my house, 20 Sample road, Sample Town to my wife Margate John of 24 Keepers close.
  • I give £100,000 to my son
  • I give the following pecuniary legacies free of tax
  1. To my sister Sarah Jane of 10 New Road London the Sum of FIVE Thousand Pounds (£5,000)
  2. To my nephew Andrew Firth of 23 Sample Road, London the sum of TWENTY THOUSAND POUNDS (£20,000)
  • I give my car to my friend Albert ( this will be the car at the time of death, not at the time when the will was written)
  • I give my BMW car to my friend Albert ( this will be the specific car at the time when the will is written and if at the death the person has sold the BMW and replaced it with Ford or does not hold any car then the gift has failed, Albert will not get any car as there is no BMW anymore)

Storage of Will

Once the will is written and all formalities are met, the will must be stored in a safe place. It is advisable to provide a copy of the will to  Personal Representative ( Executors) and let them know where the will is stored.

Please refer to Sample Wills and you can download the Sample wills and write your own will keeping in mind the guide provided here

For further individual legal help

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Disclaimer

While every effort has been made to ensure the accuracy of the information provided in this article, it does not constitute legal advice and cannot be relied upon as such. Each legal case and issue may have unique facts and circumstances, as a result legalally does not accept any responsibility for liabilities arising as a result of reliance upon the information provided. For further help and guidance, you can always rely on and seek advice from our experienced lawyers.