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The importance of having a Will: is mine valid?

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Posted by Kate Anderson on 20 April 2020

Kate Anderson - Will Drafting Lawyer
Kate Anderson Chartered Legal Executive

The government have stressed the importance of preparing a Will and ensuring it is kept up-to-date, especially in the challenging times we face due to the Coronavirus pandemic. Those who are involved in the drafting and execution of Wills have been classified as key workers by the government, which highlights the importance of leaving a valid Will and ensuring your affairs are in order.

Why do I need to check the validity of my Will?

You may have already written a Will using a home-writing kit, or with professional advice, however it is important to check that your Will is valid to be sure that it will be effective after you die. Without a valid will you will die intestate and be treated as if you didn’t write a Will at all (see below for more information).

Having a valid Will gives you control over what happens to your property, money and possessions, who benefits from your estate and who deals with its distribution after you die.

What are the intestacy rules?

Without a valid Will the intestacy rules (set out in the law) will govern how your estate is passed on. The rules vary depending on where you live in the United Kingdom.

In England and Wales, the intestacy rules provide a set order which determines who will automatically inherit from your estate. The rules also provide for who will deal with the administration of your estate.

These are strict rules that must be followed and could result in someone benefitting from your estate, who you didn’t intend to. For example, if you have separated from but not divorced a partner, they will automatically inherit from you under the intestacy rules.

On the other hand, someone you wish to benefit may receive nothing at all under the rules.  For example, if your partner is not your spouse or civil partner, they will not automatically inherit under the intestacy rules. Similarly, step-children and foster-children do not have a right to inherit your estate unless you leave a valid Will benefitting them.

Also, the intestacy rules won’t take into account any instructions that you may wish to leave such as funeral arrangements and who cares for your pets.

How do I check my Will is valid?

The Wills Act 1837 contains requirements that must be complied with for a Will to be valid. If you answer ‘no’ to any of the following questions, your Will may not be valid:

  1. Were you aged 18 or older when you signed your Will?
  2. Is your Will in writing or typed and in ink (including all signatures)?
  3. Did you sign your Will?
  4. Were you of sound mind when writing and signing your Will, i.e. have mental capacity?
  5. Did you have the intention of creating a valid Will when you signed it?
  6. Was your Will made voluntarily?
  7. Did 2 people (over 18 years old) witness your signature?
  8. Were the 2 witness:
    1. Present when you signed your Will; or
    2. Told by you that it was your signature on your Will?
  9. Did your 2 witnesses sign your Will with the intention of creating a valid document having:
    1. Seen you sign your Will; or
    2. Knowledge that it is your signature on your Will, made by you.

Please note that the list above is not exhaustive and is intended to provide you with an indication as to whether your Will is likely to be valid. You could also use this list to provide an indication as to whether any codicil (a change to your Will) you have made is valid.

Who can witness my Will?

You will need to ensure that your witnesses are not blind and would be capable of giving reliable evidence about witnessing your Will if asked in the future. It would be unwise for the following types of people to act as your witnesses:

  • Your family members due to the perception that they could not act impartially;
  • The beneficiaries of your Will or their spouses/civil partners as the gifts to them would fail; and
  • Minors or individuals who lack capacity as they may not be able to give reliable evidence.

How do I find 2 suitable witnesses during the Coronavirus lockdown?

The current government guidance stipulates that we may only go outside for food, health reasons and for work (where this absolutely cannot be done at home) and to also stay 2 metres (6 feet) away from other people. Therefore, the lockdown is likely to further limit who can witness your Will.

Technology has become an important part of keeping in touch with those around us during the lockdown and it can also be used in the process of drafting and witnessing Wills.

The Private Client team are classified as key workers by the government. Therefore, we are pleased to be able to continue offering our drafting services to you. We are taking instructions over the telephone, video call or email to ensure safety for all of us.

We can discuss signing options with you.  It may be appropriate that we supervise by video call or telephone when your witnesses are present to ensure they meet current safety guidelines and the rules of witnessing.  We may also be able to help you to arrange for healthcare workers to witness your Will if you are vulnerable or at high risk.  We are proactive in doing all that we can to assist in signing your Will whilst complying with the current guidance and ensuring your safety.

If you’re not sure if your Will is valid, would like a professional opinion as to whether it is or have any questions concerning witnessing a Will, please get in touch with the Private Client team who would be happy to help.

About the author

Kate Anderson

Chartered Legal Executive

Kate advises clients on powers of attorney and estate planning including the preparation and use of wills and trusts.

Kate Anderson

Kate advises clients on powers of attorney and estate planning including the preparation and use of wills and trusts.

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