Is your Will fully valid? Or does your safety net contain too many holes?

Most of us understand that if we prepare a new Will, this revokes any previous Will that we have made and renders it invalid . We also know that we need to make sure that our Wills are properly signed and witnessed otherwise they may not be effective.

There are many other things, including changes in your personal circumstances which could render your Will, or part of it, essentially invalid. It is best to take proper advice and have your Will carefully and professionally drafted to suit your individual needs and to make sure that it can adapt to your changing lifestyle.

Getting married

Getting married or entering into a civil partnership will revoke any existing Wills that you and your partner had put in place if they are not drafted carefully. However, getting married is often a time when partners decide to amend their Wills to honor their new husband or wife. To ensure that your Wills withstand the forthcoming nuptials, they must state that they are  made in contemplation of entering into the union or it may be better for them to be signed very shortly after the big day.

Partially revoked by divorce

Divorce does not revoke a Will in its entirety. Yes you read that right! A divorce will only invalidate any gift made to your ex-spouse and will render their appointment an Executor void. The rest of your Will will still stand and your Estate will fall to your residuary beneficiaries. To be sure that your Will is effective in carrying out your wishes, it is best to review its terms when a big life change, such as a divorce, occurs.

You did not have capacity when making your  Will

If a you do not have the required mental capacity when making your Will, or later at the time of signing it, the entire document will be declared invalid. The tests for capacity are laid out in the case of Banks v Goodfellow 1870 and the Mental Capacity Act 2005. If you have recently been diagnosed with an illness or are on medication which may affect your judgment, your solicitor may ask you to visit your doctor for them to carry out a short capacity assessment. If satisfactory, this will be good evidence that you were of sound mind when making your Will and your wishes should be followed.

You have amended your Will since signing the original

If you have made any changes to your Will since signing it, the change made will not take effect unless it is formally attested in accordance with the Wills At 1837. Unbinding your Will or removing/ adding extra pages could possibly invalidate your Will in its entirety. If you have crossed out any part of your Will, but the original working  can still be read, the clause will likely still be effective and the beneficiary who you intended to remove may still receive the original gift. To ensure that any changes to your Will are properly valid, it is best to seek advice and perhaps prepare a Codicil. This is a short document which will sit alongside your Will and will give effect to your desired amendments.

A beneficiary witnesses the Will

If one of your beneficiaries witnesses your Will, the gift that you have left them will fail. The rest of your Will will still stand but this may mean that a larger part of your Estate than you originally intended may pass to your residuary beneficiaries. it is therefore best practice to sign your Will in the presence of somebody completely independent and often your solicitor and a member of their staff are best placed to ensure that your Will is properly signed.

The failure of a specific gift

Most of us will want to ensure that we pass items of high or sentimental value on to our loved ones and will want to specify the items that we would like them to have. This could include a gift of a particular watch or car, or the proceeds of a specific bank account or insurance policy. However if the particular item is disposed of or sold before you die, selling a car or closing a bank account for example, your beneficiary will not necessarily be entitled to take another item in its place or be paid their legacy from other available funds. Careful drafting and proper advice will ensure that your loved ones receive the desired portion of your estate.

Your Will fails to dispose of all of your  assets

A properly drafted Will will include a clause which deals with your “Residuary Estate”. Your residuary estate will consist of assets held at the date of your death that you have not otherwise specifically bequeathed in your Will. If you do not include a clause which properly and fully disposes of your residuary estate, some of your assets may pass to beneficiaries in the order set out in the Intestacy Rules.

If you would like to review your Will, or make a new Will or Codicil, please contact Hollie Skipper at hskipper@meaby.co.uk, or feel free to call on 020 3861 5158.

 

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