Wills are seen as one of the most important documents someone can draw up in their lifetime, many people seek advice from a specialist qualified in the field of Private Client to ensure their will is appropriately drafted, accurately reflects their wishes, and is reviewed periodically.
The requirements of a valid will
In order to create a legally valid will, a person must have the necessary capacity and intention and observe the required formalities for the execution of the will.
The person making a valid will must be aged 18 or over, and must have the requisite mental capacity. They must understand:
- The nature of their act and its broad effects
- The extent of their property
- The ‘moral claims’ on their estate which they ought to consider – for example, the moral obligations parents might feel about providing for their children.
The person must also intend to make a will and also intend to make the specific will being currently created.
The will document itself must meet several requirements:
- The will must be in writing and signed by the person making it, in their presence and by their direction.
- It must be apparent that the person intended, by their signature, to give effect to the will.
- The signature must be witnessed. This means that the person making the will can either sign it in the presence of two or more people present at the same time or, if the witnesses were not present for the signature, the person making the will can acknowledge to their witnesses that it is their signature. The witnesses must then also sign the will.
When a person dies without making a valid will they are referred to as having died ‘intestate’. The rules of intestacy contained in the Administration of Estates Act 1925 are then imposed to establish who will be entitled to receive the proceeds of their estate.
The rules of intestacy operate in 3 situations:
- Where there is no will.
- Where there is a will but for some reason it is invalid.
- Where there is a will but it does not deal with all the deceased’s estate, i.e. what should happen to some of the deceased’s assets or property is not covered by the will. This is referred to as partial intestacy.
The distribution of an estate under the intestacy rules depends primarily on whether the deceased leaves a living spouse or has children. There is a strict legal framework which dictates the order in which relatives of the deceased may inherit. More information can be found here: https://www.gov.uk/inherits-someone-dies-without-will/
Property passing outside a will and intestacy rules
Some property can pass independently of the terms of a will or the intestacy rules. This includes:
- Joint property – Where property is held by more than one person on ‘joint tenancy’ basis, on the death of one party, their interest will pass automatically to the surviving joint tenant. This does not apply for joint property held as ‘tenants in common’.
- Insurance policies – A person may take out insurance and assign a beneficiary to benefit from the proceeds following their death. On the person’s death, the insurer will pay the proceeds to the assigned beneficiary and this then falls outside of the deceased’s estate. The same also may apply to some pension policies and property under certain kinds of trust.