Briefing and Articles
5th April 2012
Ten Things to Know before You Die (about Wills)GDNEWS Spring 2012 - Article by Roger Peters and Alex Mackenzie Smith
1. You do not have to sign your Will (someone else can do it for you)
According to the Wills Act 1837, you can sign your own Will or it can be signed by another person in your presence and by your “direction”. The courts are still haggling over what "direction" may mean today, despite the 175 years they have had to establish this, so the sensible advice is always to sign your Will yourself.
2. A signature needn’t be a signature
Signing the Will shows your intention to give effect to it. “Signing” may mean using your usual signature, but in fact any mark will do as long as it is intended by you as your signature. This might be an ‘X’, an initial or even a thumb print. The signature you would use to sign a cheque is usually thought to be the safe option.
3. The Will can be signed anywhere, not just at the end
There is no statutory requirement as to where on the Will your signature must appear, but as the function of the signature is to show that you intend to make the Will (in its current form), signing at the end of the document gives a strong indication that you intend to give effect to everything that appears above your signature.
4. A Child can witness a Will
The Wills Act 1837 does not exclude anyone from being a witness to a Will and case law has found a "mature" 17 year old to be an acceptable witness in a probate dispute. In reality, it is preferable to use two adult witnesses (of sound mind) who can, if necessary, later attest to the fact that they saw you signing the document and subsequently signed it themselves in your presence.
5. An Executor can be a Beneficiary
It is very common for married couples to appoint each other as an Executor and to benefit each other in the Will. Many people choose to give a legacy to their Executor as a token of their appreciation for taking on what can be a poisoned chalice. It is important that the Executor does not witness the Will if they are to benefit from it, as this will cause their gift to fail. This also applies to any other beneficiary who witnesses a Will under which they are to receive a gift.
6. A bankrupt person can be an Executor
There is no automatic disqualification from acting or continuing to act as an Executor of a Will if the named Executor is bankrupt or subject to an IVA, even though it might be thought that control over the assets of the estate could be a temptation for someone in financial difficulties. Alarmed beneficiaries can apply to the Probate Court for an Executor to be replaced in those circumstances, usually by the appointment of two Administrators acting under a Grant of Letters of Administration (with Will annexed) with all the powers and responsibilities of the original Executor.
7. Executors are not entitled to decide on your funeral
Old case law that the body of the departed was an asset of the estate belonging to the Executors has been overtaken by a series of recent decisions which have placed responsibility for deciding the funeral arrangements firmly in the hands of the next of kin. Unless the family are prepared to pay for it themselves, the Executors must still be consulted on the cost of the funeral if it is to be met out of the estate. Unpleasantness over differences of opinion can usually be avoided if the Will includes a clear direction on the form the funeral is to take, with any more personal directions best kept within the family set out in a letter of instructions left with the Will.
8. You cannot change a mutual Will
Mutual Wills are typically made by husbands and wives in conjunction with each other, in terms they have agreed between themselves and with the intention that whatever happens, on the survivor's death, his or her estate will be distributed in accordance with those agreed provisions. If there is clear evidence that such an agreement existed, there is a contract between husband and wife which will be upheld by the courts if the survivor attempts to change the provisions of the mutual Will, or does not remake it in the same terms following remarriage.
9. Anyone can read and publish the contents of your Will
Following a Grant of Probate, a Will and any codicils to it will be available for public inspection at the Probate Registry. The press looks out for interesting Wills, the broadsheets will publish brief details of the value of the estate and, occasionally, the principal beneficiaries and the popular press will look for Wills of celebrities, and things like the more imaginative funeral wishes, large bequests to pets, or lurid text excluding a family member as a beneficiary. Such wording is best confined to a letter of wishes, which is not a testamentary document and so remains private.
10. If your new Will is invalid, your previous Will may still be in force
Under the Wills Act 1837, a Will can be revoked expressly or by implication under a subsequent Will or codicil. If the subsequent Will turns out to be invalid, usually by reason of lack of capacity or undue influence, any revocation of the earlier Will it contains is also invalid. Unless the earlier Will has been validly revoked separately by destruction (burning or tearing up with the intention of revocation, and not just a mistaken assumption that it has been overtaken by the later invalid Will) the earlier Will revives and it or a copy of it will still be valid and admitted to probate.
Space does not permit more than a brief and generalised overview of these items and there may be exceptions or differences in particular circumstances.
This article was published in the Spring 2012 edition of the GDNEWS. A copy of the newsletter, which includes additional articles, is available using the link below.