Making a will is one of the most important steps you can take to protect your wishes and provide clarity for the people you leave behind.
A will sets out how you would like your estate to be dealt with after your death, who should benefit from it and who you would like to appoint as your executors. However, for a will to achieve what you intend, it needs to be legally valid, clearly drafted and appropriate for your individual circumstances.
DIY will templates and online will-writing services can appear to offer a quick and inexpensive solution. However, they may not identify more complex legal or family issues, and mistakes can sometimes remain undiscovered until after death, when they can be considerably more difficult and costly to resolve.
Using a solicitor to prepare your will can provide reassurance that these issues have been properly considered from the outset.
How does a solicitor help ensure a will is legally valid?
In England and Wales, a will must meet specific legal requirements to be valid. Among other requirements, it must be in writing, signed by the person making the will and witnessed correctly.
The person making the will must also have the necessary testamentary capacity and must be making the will voluntarily.
Errors in the signing or witnessing process can potentially result in a will being challenged or found to be invalid. If there is no valid will, an estate may instead be distributed under the intestacy rules, which may produce a very different outcome from the one intended.
A solicitor can prepare the will and provide guidance on its correct execution, helping to reduce the risk of problems arising later.
Can a solicitor tailor a will to your circumstances?
There is no single approach to making a will that works for everyone.
A solicitor will take time to understand your family circumstances, assets, liabilities and wishes before advising on how your will should be structured.
Professional advice can be particularly important if you have:
a blended family or children from a previous relationship;
minor children or vulnerable beneficiaries;
a family business or company interests;
jointly owned property or other assets;
trusts or complex financial arrangements;
property or assets overseas;
digital assets;
pensions or life insurance arrangements;
significant debts; or
particular concerns about how or when someone should receive an inheritance.
These are circumstances where a standard template may not adequately reflect what you want to happen.
Does a will cover all of your assets?
Not necessarily.
One of the benefits of taking legal advice when making a will is understanding exactly which assets will form part of your estate.
For example, the way jointly owned property passes after death can depend upon how it is owned. Certain pension benefits, life insurance policies and assets held in trust may also be dealt with separately from your will.
A solicitor can consider the wider picture and identify whether additional documents, nominations or estate-planning arrangements should be considered alongside your will.
How can professional will drafting reduce ambiguity?
Words that appear straightforward can have unintended consequences when used in a legal document.
Descriptions such as “my children”, “my personal belongings” or instructions to “divide my estate equally” may create uncertainty depending upon the family circumstances and assets involved.
A professionally drafted will can clearly identify beneficiaries and gifts, provide for alternative beneficiaries and explain what should happen if circumstances change.
For example, your will may need to address what happens if a beneficiary dies before you, an asset referred to in the will has already been sold or money needs to be retained for a child until they reach a particular age.
Clear drafting makes it easier for executors to understand and administer your wishes and can reduce the scope for disagreement between family members or beneficiaries.
Who should you appoint as an executor?
Your executors have an important role. They are responsible for administering your estate after your death, which can include identifying and valuing assets, settling liabilities and tax, applying for probate where required and ultimately distributing the estate to your beneficiaries.
Choosing the right people is therefore important.
A solicitor can explain what the role involves and help you consider who would be appropriate to appoint. Where money or assets need to be held on trust, for example for younger beneficiaries, your will may also need to appoint trustees and give them appropriate powers.
How can a will protect children and vulnerable beneficiaries?
For parents, a will provides an important opportunity to record who they would wish to care for their minor children if both parents were to die, subject ultimately to the welfare of the child and the applicable legal position.
A will can also establish trusts so that an inheritance is managed on behalf of a child until they reach a chosen age.
Trust arrangements may also be appropriate where a beneficiary is vulnerable, has a disability or where there are concerns about giving someone direct control of a substantial inheritance.
Taking legal advice allows these arrangements to be considered carefully rather than relying on standard wording.
Can using a solicitor reduce the risk of a will being contested?
No will can necessarily prevent somebody from bringing a claim against an estate. However, careful preparation can reduce uncertainty and help ensure there is clear evidence about the circumstances in which the will was made.
Depending on the circumstances, disputes can arise over issues including whether the person making the will had sufficient testamentary capacity, whether they understood and approved its contents, whether they were subject to undue influence or whether the will was properly executed.
Certain family members and dependants may also potentially bring a claim for financial provision from an estate under the Inheritance (Provision for Family and Dependants) Act 1975.
A solicitor can identify potential areas of concern when taking instructions and advise on appropriate steps to help minimise the risk of future disputes.
Why are testamentary capacity and independent instructions important?
For a will to be valid, the person making it must have the necessary testamentary capacity and must be acting freely.
These issues can become particularly important where someone is elderly or unwell, relies heavily upon another person, has experienced cognitive difficulties or is making a significant or unexpected change to an existing will.
A solicitor can take instructions directly and independently, consider whether there are any concerns about capacity or influence and maintain appropriate records of the advice given and decisions made.
Those contemporaneous records may become particularly important if the validity of the will is questioned after death.
How does a will fit into wider estate planning?
A will is an important part of planning for the future, but it may not be the only document you should consider.
Depending on your circumstances, your wider planning could include:
Lasting Powers of Attorney;
pension death benefit nominations;
trusts;
life insurance arrangements;
business succession planning; and
planning around the ownership of property and other assets.
Taking advice allows these arrangements to be considered together so that, as far as possible, they complement rather than conflict with one another.
When should you review your will?
Making a will should not necessarily be a one-off exercise. Your circumstances, relationships and finances can change significantly over time.
It is sensible to review your will following major life events such as marriage, divorce or separation, the birth or adoption of a child, the death of an executor or beneficiary, buying or selling significant assets, changes to a business or a substantial change in your financial circumstances.
Marriage can also affect an existing will, making it particularly important to take advice if your relationship circumstances change.
Even without a significant life event, periodically reviewing your will can help ensure that it continues to reflect your wishes.
Is a DIY or online will worth the risk?
The attraction of a DIY or online will is understandable: it may appear quicker and cheaper than instructing a solicitor.
The difficulty is that problems with a will often only become apparent after the person who made it has died. At that point, they are no longer available to explain what they intended or correct an error.
An incorrectly executed, ambiguous or unsuitable will can potentially result in failed gifts, unintended beneficiaries, delays in administering the estate, family disagreements or costly legal proceedings.
The initial cost of obtaining professional advice should therefore be considered alongside the potential financial and emotional cost of resolving problems with a will after death.
Speak to AR Brown Solicitors about making or reviewing your will
A properly prepared will does more than record who should receive your assets. It provides an opportunity to consider your family circumstances, your estate and any potential legal issues before putting clear arrangements in place for the future.
Whether you are making a will for the first time, your circumstances have changed or you are unsure whether an existing will still reflects your wishes, our team at AR Brown Solicitors can help.
Contact A R Brown & Co Solicitors to discuss making or reviewing your will and the estate-planning arrangements that may be appropriate for you.