What’s the problem with blank Will forms? They don’t work !

We always position our service as a happy mid-ground between expensive solicitor fees and the blank Will forms that you can download from the internet or buy from WHSmiths. The finished product of using an interactive online Will service is usually identical to a Last Will and Testament prepared by a solicitor. After all, a solicitor doesn’t write a Will starting with a blank sheet of paper, they use what are known as “Will precedents” or clauses that are historically established, and are known to work. Most solicitors actually use “Parker’s modern Will precedents” and this is the exact same reference book used by LegalWills.co.uk.

Will forms

We’ve adapted the established Last Will and Testament clauses into an interactive online Will service. So how does the end result compare to the use of blank Will forms? We actually purchased a blank form to demonstrate some of the differences.

Appointment of Executors

The Will forms allow any combination of single Executors and back-up alternate Executors. However, if you are creating a trust for a minor, or if you are leaving property that you own as Tenants-in-Common, then you should name two co-Executors or Trustees. Naming a single Executor in either of these cases is going to present a problem for the administration of the Will. In fact, the blank Will form that we purchased had the following as a clause;

I APPOINT [Insert first executor’s name here] of [Insert first executor’s full address here] to be the Executor / Executrix of this my Will provided he / she shall survive me by 30 days but if he / she shall predecease me or otherwise fail to survive me by 30 days or otherwise be unable or unwilling to act then I appoint [Insert second executor’s name here] of [Insert second executor’s full address here] and [Insert third executor’s name here] of [Insert third executor’s full address here] to be the Executors and Trustees of this my Will.

This is a slightly odd clause. It is easy to mis-read it as a first choice, with a second choice and then a third choice, when in fact it is a first choice, with two people working as co-Executors/trustees as an alternate plan. If you would prefer co-Executors as a first choice with a back up in case one cannot serve (a far more likely scenario) then this clause would have to be completely re-written.

Appointment of Guardians

Again, the blank Will forms offer an unusual clause

I APPOINT [Insert first guardian’s name here] of [Insert first guardian’s full address here] and [Insert second guardian’s name here] of [Insert second guardian’s full address here] to be the Guardians of any of my children who are minors at the time of my death if I am the sole surviving parent at the date of my death.

These are not a first choice and a second choice, but an appointment of co-guardians for all children. Most people would expect and mis-read this to be a first and second choice, but if you insert “Jane Smith” and “Mary Brown” you may as well not enter any guardianship because you have simply confused matters. Two people in two different houses are unlikely to share guardianship of children. However, naming a backup is vital and not supported in this blank form Will.

Funeral wishes

Most Will forms include a clause for funeral arrangements. We advise people to not include funeral wishes in their Will for a few reasons. Firstly, you funeral could be over by the time your Will is finalised and proven to be your Last Will and Testament. Furthermore, your Will is a legal document recognised through the courts. Your funeral wishes on the other hand are an expression of your desires and no more. Although you would expect your loved ones to honour your wishes, they are not legally binding. We actually encourage people to use a more complete service like MyFuneral at LegalWills.co.uk and simply store the document with their Will.

Legacies

This is perhaps the area that needs the most work with Will forms. The form simply has the heading;

I GIVE the following Legacies absolutely with any tax due to be paid by my estate.

There are a number of ways that this section can be completed incorrectly. It doesn’t leave room for any alternate beneficiaries, and it offers too much latitude to describe a legacy that makes no sense. Supposing I said

“my car to my nephews and Susan Brown”

Which car, which nephews and which Susan Brown? and in which shares?

Many people fall into the trap of trying to list their possessions in this section, without fully appreciating that the document will not come into effect until 20 years have passed.

Residue clause

The Will forms that we looked at had this as the residual clause

I GIVE the residue of my estate or the part of it affected to those of my children who survive me and attain the age of 18 / 21 years if more than one in equal shares PROVIDED THAT if any of my children dies before me or after me but under the age of 18 / 21 I give the share that child would have taken to his or her own children who obtain 18 / 21 and if more than one in equal shares if none of my children survive me or attain the age of 18 / 21 or if this gift or any part of it fails for any other reason then I give the residue of my estate or the part of it affected to [Insert full name and address of person or persons who will receive residue, if residue to children fails].

Although it takes a lot of concentration to figure out what this means, it’s a really bizarre clause. If you have a 21 year old child and a 16 year old child, then it appears that your 21 year old will receive your entire estate. It then has a clause that if a child dies before they have reached the age of 21 then their children will receive their inheritance which seems an unlikely scenario. It is a significant concern that Wills have been written with this clause in them.

No trusts for minors

It would seem that the wording of the residue clause is actually a workaround so that the form does not need to handle trusts for minor beneficiaries. There is absolutely no provision for minor trusts in this document so even though it went by the title of “Will for married with children”, it would appear that any young children would be completely written out of this Will which would not only be unusual, but would almost certainly lead to a challenge to the Will. The money you saved by using blank Will forms would be insignificant compared to the legal costs of a challenge to the Will.

Are Will forms too prescriptive?

At LegalWills.co.uk we have helped hundreds of thousands of people prepare their Wills and we have fielded thousands of questions and support calls. We know the kinds of estate distributions that people need through our service and it is not always as simple as “all to spouse, if we die together, everything shared between our children”.

Even in the most simple cases, blank Will forms seem to incorporate clauses that don’t make sense, but take significant grammatical processing and even some legal training to fully understand. I had to read the residue clause above many times before I could make sense of it, and it would be easy to gloss over the clause and think that you have set something up in an entirely different way. An online Will service is able to ask for your intentions in everyday language and then incorporate those answers into a well drafted Will.

Your Will is probably likely to not come into effect for many years. At this time your family and financial situation may be very different to how it is today, and online Will services are able to help by covering alternate plans and the “what if” scenarios. Covering these scenarios is actually very challenging when using blank Will forms.

Sadly, many of these Will forms are very cheap if not free. But hopefully I’ve been able to provide some specific information as to why they should probably be avoided. If you do choose to use blank Will forms, please read the document very carefully once it has been completed.

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