Writing a Will: why there is nothing to fear

Many people try to lead you into thinking that writing a Will is so complicated that only a qualified solicitor with years of training should attempt it. You have probably been told that attempting to write your own Will is only going to lead to misery for your loved ones. One of the most common scare-tactics is to compare writing a Will with performing surgery on yourself !

We have explained in the past that writing a Will is neither so complicated that it needs a professional, but nor is it so easy that you could just write one on a blank piece of paper. It is somewhere in between, and it is this mid-ground that LegalWills.co.uk tries to fill with its interactive online Will service.

So what makes a Will a Will?

The answer to this question hasn’t changed much since the Wills Act was written in 1837.

No will shall be valid unless—

(a)it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and

(b)it appears that the testator intended by his signature to give effect to the will; and

(c)the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

(d)each witness either—

(i)attests and signs the will; or

(ii)acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness),

Now there are some qualifiers to this. Your witnesses shouldn’t be beneficiaries in your Will, nor should they in general have anything to gain from the contents of the Will (the spouse of a beneficiary would be a poor choice).

In essence though, there’s nothing to it; as long as the document states that it’s your Will, and you sign it in front of two witnesses, then you have written a Will.

Should I be writing a Will with a blank piece of paper?

There is however a difference between writing something that could legally be described as a Will, and writing a Will that can actually work. A well drafted Will needs a few extra things including;

Alternate plans

When writing a Will, you must cover all possible situations that may arise. What happens if your first choice beneficiary pre-deceases you, or your first choice guardians subsequently have triplets of their own, or your first choice Executor decides that they don’t want to do it. You need to include backup plans for every appointment, and every part of your distribution plan, otherwise you may end up with a Will that cannot be used. There are countless examples of people who didn’t update their Will to reflect changes in personal or financial circumstance. Your alternate plans build some contingency into your Will.

Residual clauses

The residual clause names the beneficiary to receive everything after funeral expenses, taxes and specific gifts. This can often be the main beneficiary of the estate, but it can also be the catch-all for every bequest that for whatever reason cannot reach the desired recipient. Every Will needs a residual beneficiary, and as noted above, an alternate residual beneficiary.

Powers to the trustee

When you are writing a Will with a blank piece of paper as your starting point, you may think of alternate plans, you may even think of a residual beneficiary, but you will never be able to prepare clauses that grant powers to the trustee. A well-drafted Will is going to describe what exactly your Executor will be permitted to do in order to administer the estate which will include employing professional help, liquidating assets, investing the assets in the estate and so forth. This is why a Will created through LegalWills.co.uk will typically be about 5 pages long and include over 20 clauses.

Legal requirements vs best practices

The questions that we receive from people suggest that there is a genuine fear of their Will being dismissed on a technicality. People ask when they are writing a Will whether the paper has to be of a certain colour, whether they should staple or use a paperclip, whether they should sign in blue ink or blank ink, whether they can fold the document. None of these actions will impact the legal standing of a Will.

However, there are certain steps that can be taken to guard against potential challenges to a Will. If you suspect that some decisions in your Will are likely to upset family and loved-ones, and you fear that disgruntled family members may challenge the Will, then it makes sense to take a few extra precautions. For example, initialling each page, and having your witnesses initial each page will head-off a challenge based on a claim that pages have been inserted or removed.

Testator Intentions

The courts will never try to dismiss a Will on a technicality. The Administration of Justice Act 1982, enables the Court to consider the testator’s intention and to correct Wills that do not reflect the testator’s intentions.

Lord Denning stated the following:

‘The object of the court in construing a will is to discover the intention of the testator. I do not think his intention is to be discovered by looking at the literal meaning of the words alone. You must look at the will in the light of surrounding circumstances. You

must look to see simply what the testator intended. If you find that a literal interpretation gives rise to a capricious result which you are satisfied the testator can never have intended, then you should reject that interpretation and seek for a sensible interpretation which does accord with his intention.

Which leads us to this fascinating judgement last week from Australia where the person was writing a Will and made every mistake possible. He signed the document, and next to his signature it said “in the presence of” but his witnesses didn’t sign. A couple of days later, they realized this, and signed the document, but their signatures were dated two days later. To make things worse, the witnesses were beneficiaries in the Will.

The judge however decided that even though two of the most important rules related to writing a Will were broken, the intent of the testator is the most important consideration, and as such, the Will was still valid.

When so many fundamental errors have been made, yet the Will is still judged to be a valid Will, it makes the fear of incorrect stapling seem overly paranoid.

Of course, you would want your Will to work without a court challenge, and without any issues, so we would recommend that you avoid trying to writing a Will using a blank form or kit. But hopefully this case illustrates that there is really nothing to fear when writing a Will. And certainly if you use an interactive online service like the one at LegalWills.co.uk you will end up with a Will that will look identical to one drawn up by a solicitor.

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