Anaya Nolan
Making a will is a vital step in ensuring that your wishes are met after your death. In the UK, a will ensures that your assets, possessions, and investments (collectively referred to as your estate) are distributed according to your preferences. While it is not legally required to involve a solicitor in the process, doing so can help to avoid common mistakes that may cause issues or invalidate your will. It is important to keep your will up to date, storing it safely, and ensuring your executors know its location.
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Making a will
To make a will, start by making a list of your assets, such as property, vehicles, savings, and investments. Then, decide how you want to divide these assets among your beneficiaries, which can include family members and charities. If you want to leave a donation to a charity, you must include its full name, address, and registered charity number. You should also consider any other wishes you have, such as the type of funeral you want, and make arrangements for any children, such as naming a legal guardian.
Once you have decided on the contents of your will, you can write it yourself or seek the advice of a solicitor. Writing a will yourself is only recommended if your will is straightforward. A solicitor can help you avoid common mistakes that could make your will invalid and ensure that it is legally sound. They will also explain the costs at the start. After your will is drafted, you and your witnesses must sign the same document. Both witnesses must have a clear view of you and the act of signing, and you must also have a clear view of them when they sign. Your witnesses do not need to sign at the same time, and you can even ask someone to sign on your behalf if you are unable to do so. If you are unable to meet with your witnesses in person, you can watch each other sign your will remotely via video conferencing, but this is only an option in England and Wales.
After your will is signed, it should be kept in a safe place, and you should reconsider its contents regularly to account for any changes in your circumstances, such as getting married or registering a civil partnership.
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Validity of a will
In the UK, the Wills Act 1837 sets out the requirements for making a valid will. For a will to be valid, it must be in writing and signed by the testator (or someone else in their presence and under their direction). The testator must have the "mental capacity" to understand what they are doing, why, and the consequences. This is sometimes referred to as being "of sound mind".
The test for mental capacity has four strands, as set out in Banks v Goodfellow (1870): a person must understand that they are making a will and the effects of doing so; they should understand what would happen if they do not make a will; they must have a basic grasp of what they own and are entitled to give away; and they must be aware of those who might be expected to receive part of their estate. A person must not be suffering from any delusions that affect their judgment, including symptoms of mental illness, injury, or other conditions.
If there is any doubt about a person's mental capacity, a doctor can prepare a report. Undue influence, where a person is pressured into making a decision by someone else, may also invalidate a will. Amendments to a will must be properly attested to be valid; if the original wording is obliterated, it is ignored.
Once a will has been made, it should be kept in a safe place, such as with a solicitor, bank, or the Probate Service. It is important to review your will every five years or after major life changes, such as the birth of a grandchild or moving house, and to ensure that it covers your entire estate.
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Storing a will
There is no legal requirement in the UK as to where you must register, deposit or store your will. However, it is important to keep it in a safe place where your executors can find it when they need it. If your will is damaged or lost, or if your executors can't find it, your wishes may not be followed.
You can keep your will with your other documents, in a safe, or anywhere else you like, as long as your executor knows where it is. It's free, but it could be risky as the will might be thrown away or damaged accidentally. Never attach other documents to the will, as marks made by staples, paperclips, glue or sticky tape can raise questions about whether the will has been tampered with.
Your solicitor or will writer may store it for you at their offices. If a solicitor writes your will, they will usually store the original free of charge and give you a copy. Most solicitors will also store a will they didn't write, but there will probably be a fee. Solicitors are regulated, so if the will is lost or damaged you can take steps to make things right.
Some banks offer will-writing and storage services, but these are generally not suitable as they are not accessible to executors. Wills stored in a bank safety deposit box will not normally be accessible to executors until probate has been granted, and probate cannot be granted until the will has been obtained.
The Probate Service, operated by the Government, offers to store wills and codicils for a flat fee. It costs £20 each time you lodge a document. To use this service, you need to obtain a 'safe custody will envelope pack' from a probate registry office. The pack contains a form that you must complete and a special envelope to use. Once completed, you post the pack by registered or recorded mail to the Principal Probate Registry in London, or take it to any regional probate registry who will post it for you. You need a witness to certify that you are sending your own will.
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Changing a will
It is important to keep your will up to date to account for changes in your circumstances. You can make small changes to your will, such as changing the executors or adding a legacy, by using a document called a codicil. A codicil is a supplement to a will that makes some alterations but leaves the rest of it intact. It is a straightforward document that needs to be signed and witnessed in the same way as a will. There are no rules on what you can change using a codicil, but it is only suitable for very small, straightforward changes. If you want to make complicated or significant changes to your will, it is better to write a new one.
A codicil should be kept with your original will, as it can get lost and raise questions over the original will. There is no limit on how many codicils you can add to a will, but it is a good idea to use codicils sparingly, as they can make sorting out your will more complicated when you die.
If you are making a new will, it should explain that it revokes (officially cancels) all previous wills and codicils. You should destroy your old will and any copies by tearing it up, shredding it or burning it. Tell your executor where your new will is kept so they can find it when the time comes.
Some common changes of circumstances that affect a will are: getting married, divorced, or registering or dissolving a civil partnership; the birth or adoption of children; and significant changes to your finances, such as buying a property overseas or starting your own business.
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Executor of a will
An executor of a will is responsible for carrying out the wishes of the deceased as set out in their will. They are legally responsible for handling the deceased person's estate, which includes their money, property, and possessions. Executors must act in the best interests of the estate and are not allowed to go against the terms of the will, breach their fiduciary duty, or neglect their responsibilities.
Anyone making a will must name at least one executor, and can appoint up to four executors. It is common to appoint at least two executors in case one dies or is unable to act. An executor can be a beneficiary of the will, and can be a friend or family member, although it is important to choose someone you trust and who is willing to take on the responsibility. The role of an executor can be time-consuming and challenging, especially when dealing with complex or large estates.
Executors are responsible for applying for probate, which gives them the legal right to deal with the deceased person's estate. They may also need to pay any outstanding taxes and debts, sell and transfer assets, and distribute the estate according to the wishes set out in the will. This can include deciding when to sell property to maximize the value for beneficiaries and ensuring the correct amount of taxes, such as Inheritance Tax, is paid.
If someone has been named as an executor but is unable or unwilling to act, they can renounce probate. In this case, any other surviving executors can deal with the estate, or a replacement executor named in the will can take over. It is possible to appoint a professional executor, such as a solicitor, although this can be expensive.
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Frequently asked questions
The UK has three distinct legal systems: English law (in the joint jurisdiction of England and Wales), Scots law, and Northern Irish law. Since 2007, there have been calls for a fourth type—purely Welsh law—as a result of Welsh devolution.
The requirements for studying law in the UK vary depending on the university and the student's academic background. Some universities require applicants to take the LNAT as part of their application, while others do not. Graduates from Canadian universities will generally require a B+ grade or higher to qualify for an LLB in the UK.
International students can stay and work in the UK for up to two years after graduation without sponsorship. They can then take the Solicitors Qualifying Examination (SQE) route to become certified as a solicitor.
Foreigners can usually apply for UK indefinite leave to remain after 5 years of lawful residence. One can apply for UK citizenship after 5 years of residence if they have been a permanent resident for 12 months. The process and requirements vary depending on nationality, family ties to the UK, and the type of visa held.
