What is a Will?
This topic covers off the following themes:
What is a Will?
A Will, otherwise known as the Last Will and Testament, or Testament, is a legal document by which a Testator (the person writing the Will) expresses their wishes as to how their estate is to be distributed upon death. A Will typically lists out the details of one’s estate including any owned property, money, bank accounts, shares (local and aboard), who is to take care of the affairs upon death (the Executor), who will benefit from the Will (the beneficiaries), who should look after any children if they are under 18 years of age, and any other personal wishes i.e. what song you want to be played at your funeral.
How is a Will created?
There are many ways to create a Will, with more and more options becoming available to Testators on a regular basis. Traditionally, a Will is created by engaging with a professional, such as a Will writer or solicitor. However, in this modern day and age, a variety of online providers exist where digital or online Wills can be created with a few clicks of a button and the details of an estate. Before writing a Will, it is recommended to create a list of the assets (money, property or items) you wish to leave to each person.
The Will writer will take these wishes and ensure the Will is accurately written so the chosen beneficiaries receive their inheritance.
Who needs a Will and why is it needed?
Arguably, every person who is over the age of 18 (or 12 in Scotland) needs a Will. A Will ensures the estate is distributed exactly how you want it. Family relationships are often complex and not having a Will means your estate will pass following the rules of intestacy.
If you have a difficult relationship with blood relatives or would prefer for your estate to pass to someone outside of your bloodline, a Will ensures it will not follow these rules of intestacy. To find out more about the rules of intestacy and what makes an intestate estate, click here.
What makes a Will valid and legally binding?
In order for a Will to be valid it must meet the following criteria:
The Testator must be over 18 years of age (in Scotland, you must be over 12 years of age)
The Will must have been made voluntarily and without pressure from any other person
The Testator must be of sound mind. This means the person must be completely aware of the nature of the Will, must be aware of the estate listed and the identity of those chosen who will inherit from their Will
The Will must exist in written format (handwriting or computer text is acceptable)
The Will must be signed by the Testator in the presence of two witnesses
If creating a digital Will, it must be printed and signed by the Testator and in the presence of two witnesses
After the Testator signs the Will, the same two witnesses who were present must sign the Will
A witness or a married partner of a witness cannot benefit from a Will. If the witness is a beneficiary of the Will, the Will is still valid but the beneficiary will not inherit under the Will.
Adding in a date is not a mandatory requirement to validate a Will, however, it is strongly advised to include the date in which the Will is signed.
If someone creates a Will but it is not signed or misses any of the points listed above, it will not be valid and the estate will be distributed following the rules of intestacy.
What happens when someone dies without a Will?
If someone dies without a Will, or the Will is not valid, the estate becomes intestate and must be distributed following the rules of intestacy. Under these rules, only married or civil partners and other close relatives can inherit. Personal relationships outside of bloodlines are not considered so where the deceased may not have gotten along with close relatives, by law, they are still entitled to inherit. Best friends, neighbours, a life-long unmarried partner or carer will not benefit from an intestate estate.
To find out more about intestate estates, click here .
The best way to ensure your preferred people benefit from your estate is to write a valid Will.
What happens when someone dies with a Will?
When someone dies with a valid Will, the wishes of the deceased will be honoured. Upon death, the Will must be retrieved and the estate administration process can commence. The Will may list out specific requests for the funeral which is why it is recommended the Will is located as soon as possible.
The Will also highlights who the Executor or Executors will be for the estate administration. It is the responsibility of the Executor to complete the estate administration process, including but not limited to obtaining the Grant of Probate, completing the legal and tax forms and distributing the inheritance out to the beneficiaries. To find out more about the role of an Executor, click here.
Can a Will be disputed?
A Will can only be disputed or contested by spouses, children or people who are mentioned in the Will or a previous Will. To contest a Will, one of these people will notify the Court that they believe there is a problem with the Will. The main reasons for people to contest a Will are:
Testamentary capacity: a person’s legal and mental ability to make or alter a valid Will
Lack of due execution: the presumption that everything is to be presumed to have been done properly but hasn’t been
Lack of knowledge and approval: the person making the Will must have knowledge of, or approve of its contents
Undue influence: whereby the Testator has been coerced or influenced which has caused them to write the Will in a particular way
Fraudulent Wills and forged Wills: typically where a Will that has been created without the deceased’s knowledge
Rectification and construction claims: where there is a defect in the Will i.e. the beneficiary’s name is spelt incorrectly and the Will needs to be rectified
Contesting a Will is a long, complicated and costly process. It is recommended only to take this route is the above points can unconditionally be proven. Often proving these grounds in itself can be a major challenge for those trying to contest a Will.