The Importance of the Will
The Will is an important document that allows you to decide how you wish your money and possessions to be distributed and who to. Wills also allow individuals to request certain people, known as Executors, to be in charge of the deceased's estate and manage their affairs once they pass away including ensuring that any wishes that have been mentioned in the Will are carried out.
Why are they so important?
If you die without a Will, your estate will be distributed inline with the Rules of Intestacy. The Rules of Intestacy prioritise your spouse or civil partner, and relatives, and the estate is distributed accordingly. Therefore, if you have an unmarried partner, they will not inherit anything if you have not written a Will that shows you wish to allow them to inherit some or all of your estate.
Wills need to be kept up to date, if you have separated from your partner, they may still inherit certain possessions if you do not state otherwise. Any alterations will also need to be signed and witnessed, as otherwise they will be invalid. There may be a codicil to the Will, which allows the person to alter parts of the Will or there may be an entirely new Will if significant changes have been made. The old Will should then be intentionally destroyed, meaning it is no longer legally valid.
Ensuring the Will is valid
There are common mistakes that may be made when drawing up a Will, and these may result in the Will being invalid, and the Rules of Intestacy being used to distribute the estate.
There are formal requirements that are required to ensure a Will is valid. These include the person being of sound mind when writing the Will. The Will must be in writing, and signed in the presence of two witnesses, and signed by these two witnesses in the presence of the person who made the Will.
The witness, or their married partner, must not benefit from the Will they are witnessing. The Will will still be valid even if the deceased put them down as a beneficiary, but they will not be able to inherit anything
There may also be problems when not all assets have been accounted for in the Will.
The Will should be kept in a safe place, such as at home, with a bank, with a solicitor or with the Probate Registry Service.
Executors are those who have been nominated to be responsible for dealing with the deceased’s estate. There are many responsibilities involved with being an Executor, as you must collect all of the assets, pay debts, taxes and administration costs, and ensure assets are distributed correctly to the beneficiaries.
It is advisable that there is more than one executor appointed, in case one dies before the Will comes into effect.
Executors have the right to refuse taking on the responsibility, so it is important that they are asked whether they agree to take on responsibility prior to nominating them on the Will. Even once they have been nominated, and the person has passed away, they still have the right to refuse, and this will not affect their right of being a beneficiary.
Changes due to Coronavirus
During the recent outbreak of Covid-19, witnessing Wills has become difficult to arrange.
However, the Government has passed legislation that allows for remote electronic witnessing of Wills (backdated to 21 January 2020). These measures will remain in place until January 2022.
As previously set out in The Wills Act 1837, no Will shall be valid unless:
It is in writing, and signed by the testator, with them intending to give effect to the Will
The signature is made by the testator in the presence of two or more witnesses who are present at the same time
Each witness signs the Will in the presence of the testator
The new law will enable witnesses to have a virtual presence when witnessing the signing of a Will. The quality of the sound and video must be sufficient for the witnesses to see and hear what is happening at the time. Furthermore, the signatures are still required to be physically signed, as electronic signatures are not permitted.
The virtual presence and use of video technology should remain a last resort though, and those who can arrange physical witnessing should do so.