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Megan Manganaro
Megan Manganaro ,
PARALEGAL
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What common errors can affect the way my property is inherited under a Will?
26 February 2020

By nature, Wills are often associated with the elderly. It therefore comes as no surprise that around 54% of adults do not have a Will and, of those that do, many are not kept up to date or no longer accurately reflect their wishes.

There are a number of common errors which can result as a consequence of inaccurate drafting or failing to update a Will. Where the purpose of Will is to protect your assets for the benefit of family and loved ones, it is important to know some of the key occasions when it may be necessary to review, update or write a new Will.

Invalid execution

A Will may be invalid if it doesn’t adhere to the formalities as prescribed by the Wills Act 1837. For example, if it is not in writing or it has not been signed in the presence of two witnesses.

In 2017, the Law Commission launched a review of Will making, looking at whether there should be changes to certain laws. As part of its review, it ‘wants to pave way for introduction of electronic wills to better reflect the modern world’.

Examples from international jurisdictions may show what is in store for the future of technology and Will making here in the UK. Over previous years, decisions by Australian courts have involved a legally valid Iphone Will, a Will made by an informal document found on the deceased’ computer, and a Will made by DVD recording.

Automatic revocation by re-marriage

If you marry or form a civil partnership after making a will, the Will is automatically revoked. This applies unless:

  • It was made in contemplation of a forthcoming marriage or civil partnership;
  • To a particular person; and 
  • There is no intention for the Will to be revoked upon the marriage or once the civil partnership is formed.

It is widely felt that this aspect of the law is outdated in modern society as individuals now live in different ways, including having a second family.

How the law currently operates means that should you remarry and not make a new Will, children from a first marriage may not receive anything from the estate, depending on its size.

Other changes in circumstance

Divorce

Unlike the rules surrounding Wills and marriage, if you make a Will and later divorce or dissolve the civil partnership, the Will remains valid.

The divorce or dissolution does however affect the provisions in your Will by considering your ex-spouse or ex-partner as having died before you. So, if your Will contained:

  • a provision that appoints your ex-spouse or ex-partner as the Executor of your Will; or
  • a provision gifting them property or any interest in property

the provision will take effect as if the former spouse or partner had died on the date of the divorce or dissolution.

In the case of gifts in the Will, this will mean that any provisions that provide for what happens to the property should they die before you shall take effect upon the divorce or dissolution.

Your family grows

As well as providing for how your property will be distributed, your Will importantly also appoints who will act as guardians for any children you have at the time of your death and sets up trusts for them.

Another time to review your Will may be if your children marry or have children of their own, to ensure your estate passes the way you want it to in light of the changes.

Change in your financial circumstances

If you were to receive an unexpected windfall or acquire another asset, it could mean that gifts in your Will are significantly larger than you had previously envisaged.  You may therefore choose to amend your Will so that the gifts remain appropriate to how you deal with the rest of your estate. 

Change of heart

Over the course of a lifetime, changes can occur in personal and financial circumstances, your wishes and relationships which can lead to a change of heart as to how you would like your estate to be divided after you die.

For instance, you may fall out with family member and no longer wish for them to inherit from your estate or find that a charity has become meaningful to you and want to leave it a bequest. Likewise, a family member may experience a change in their financial circumstances and you may decide as a result that your estate should be diverted elsewhere.

You should also review the appointments you have made in your Will to make sure those you have nominated, as for example an Executor or a Guardian for your children, are still willing and able to act. 

Gift failure

There are a number of instances which can cause a gift in a Will to fail. These include: 

Gifts of property that do not pass by Will

There are certain types of property that pass independently of a Will and any attempt to leave it by Will therefore fails.

An example would be where an individual owns property as joint tenants with another and tries to leave their share in the property by a gift in the Will. The gift will fail as the property automatically passes outside the Will to the surviving co-owner under the rule of survivorship.

Other property will not pass under the Will as it was not beneficially owned by the deceased at their death. This includes life assurance policies written in trust for another and pension benefits paid upon death in service. 

Where a witness of the Will is a beneficiary under the Will

If a witness to a Will is beneficiary under the Will, the Will remains valid but the gift to the witness will fail. 
This also applies where the witness is the spouse or civil partner of a beneficiary under the Will. 

Gift of a specific asset not owned at death

Where a Will contains a gift of specific property and that property is sold, given away or destroyed sometime before death, the gift fails.

It’s therefore important to remember to update your Will when these changes occur. Failure to do so can mean that the estate isn’t divided how you intended it to be and can result in disappointment for the intended beneficiary. 

Gift to a beneficiary who dies before you

Provided the beneficiary of a Will survives the person who has made the Will (the testator), the gift to them will take effect.

However, where a beneficiary dies before the testator, the gift will lapse. What happens to the gift depends on whether the testator provided for the possibility of the gift lapsing, e.g. by providing a substitute beneficiary for the gift.

If the gift lapses and the testator has not provided for what will happen should the beneficiary die before them, the gift will fall into residue. If the gift was part of the residue rather than a specific gift it will pass according to the intestacy rules.

Confusing terms

Many people want to be certain that their estate is inherited in the way they choose. It is therefore important that the wording of your Will is clear and reflects your intention so that those administering the estate pass property in the correct shares and to the intended beneficiaries.

Where a testator’s intentions cannot be ascertained or where there is evidence of misunderstanding to the legal meaning of the words used in a Will, it may be necessary to apply to the Court who will determine the construction. 

Alterations

If an alteration is made after a Will is executed, the alteration must also be executed as a Will to valid.  For these purposes it is sufficient that you and the witnesses of your Will write your initials in the margin beside the alteration.  An unexecuted alteration will have no effect.

If a Will contains invalid alterations, the original wording will apply as far as it can still be read or ascertained from a draft or copy.

When don’t you need to review your Will?

There are other changes in circumstance which do not require you to update your Will.

Change of address

A common misconception is that the validity of a Will or gift in a Will is affected where the testator or anyone named in the Will changes address.

As long as you or the person named in the Will can still be identified, the use of an old address does not pose a problem. It is however recommended that when you do come to update your Will, you use current addresses.

Change of name

Similarly to a change of address, as long as the name was correct at the time of making the Will, a subsequent name change will not automatically invalidate the document.  

Comment

It is important when you make a Will that it is accurately drafted and reviewed at regular intervals, especially when your circumstances or the circumstances of those named in your Will change.

Where you wish to update or amend your Will, it may not always be necessary to make a completely new one. Minor changes are usually achieved through execution of a Codicil. This is a document to supplement the Will and is often considered to be a cheap and easy way to make alterations without needing to create a whole new Will.

If you would like to have a Will prepared or would like more information about updating your Will and the options available to you, please contact our specialist Wealth Protection team.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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