The Willwriting Partnership

0161 7054382

Photo Photo Photo Photo Photo

Will you please explain?

A Will is a document by which a person (the testator) appoints people or organisations (executors) that are trusted to administer the testator’s net assets (the estate) after his or her death. It also directs the manner in which the estate is to be distributed to the beneficiaries that are specified. In addition to the management and distribution of the deceased's estate, a Will can direct who is to be the guardian or guardians of the deceased's children.  It can also direct how the deceased's funeral arrangements are to be conducted.

To be valid the Will must comply with the formal requirements of the Wills Act 1837 as substituted by the Administration of Justice Act 1982.

A Will shall not be valid unless; -

• It is in writing, and signed by the testator, or by some other person in the testator’s presence and by his direction
• It appears that the testator intended his signature to give effect to the Will
• The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the time.

There are certain people who should not be witnesses, for example blind people, people who are drunk or of unsound mind. Also, ideally it is better not to have a witness who is under the age of 18, who is very old or who will be difficult to trace. Finally, whilst a beneficiary or the spouse of a beneficiary can witness a Will, any legacy given to that beneficiary/witness or his/her spouse will fail.

Things to remember

  • To make a Will a person must be sober and of sound mind. A person who lacks mental capacity cannot make a valid Will. Where there is an element of doubt about mental capacity, it is advisable to have a medical practitioner in attendance.
  • Any number of persons can be appointed as executors, although the number able to take out a grant of probate is limited to four.
  • Although there is no restriction of appointment, it is preferable to ensure the executors are not aliens resident abroad, minors, convicted criminals, or bankrupts, as the court could exercise its discretion to pass over the person nominated. It is also sensible to appoint executors who are younger than the testator, as clearly they have to survive the testator to act.
  • A firm of solicitors, a bank or a trust corporation may be appointed as an executor. The advantage of such an appointment is that the administration of the estate is in professional hands.  The disadvantage however is that the professional executor is allowed to charge for sevices rendered
  • Under normal circumstances persons under eighteen years of age cannot make a Will
  • An exception to the rule about a Will having to be in writing and the person having to be eighteen applies in the case of members of the armed forces on active duty, when a verbal Will from a minor would be acceptable.
  • A blind or illiterate person, or a person who does not have a good command of the English language can make a Will, but in these circumstances a special attestation clause is inserted, the Will is read over to them and in some cases the Will can be signed on their behalf
  • A Will is revoked by its physical destruction, or by a subsequent Will or codicil. Marriage, re-marriage or a civil partnership also revokes a Will unless the Will was expressly written in anticipation of the marriage.
  • Jointly owned property (as joint tenants) passes to the surviving owners, and is not disposed of through the Will
  • Nominations by the deceased (below £5000), as well as certain life assurance policies and pension schemes of the deceased can be written so as to be paid to beneficiaries independently of the Will.

Contact us for a free consultation,
or call 0161 7054382 now.