Elements of a valid will

In Wills and Probate

Sitting down to work out the details of your will can be something you’d rather put off. However, when you do finally commit to considering your assets, choosing your executor and drafting out your will, it’s important to know that it’s legally valid.

  • Books on a table next to a journal

So how can you make sure you have a valid will and that it will be upheld?

1) Age

You need to be at least 18 years of age to write a will. Those younger than 18 in the UK would not be able to leave a legally enforceable will.
Leaving assets to minors is also trickier – often these can be left in a trust that becomes accessible when the child comes of age. In cases like these, it is important to discuss your requirements with an experienced solicitor so that you can be sure your wishes are carried out.

2) Witnesses

When you sign your will, this must be witnessed by two different people, who will both sign the document alongside you. These witnesses cannot benefit from the will and they may be called upon after your death to confirm they witnessed your signature. As such, choosing someone who has good sight, is a mentally capable adult, and is independent of your will is important. Similarly, the witness must be someone who would not have the capability to coerce you into signing the will.

Interestingly, your witness does not have to know the contents of the will, or that the document is your will at all, in order to witness your signature. Try to pick witnesses who are independent and not beneficiaries, like a neighbour, colleague or friend. It’s also important to remember that both witnesses have to be present at the same time, so try to choose people who will both be available.

3) Codicils

When you make one-off changes to a will, it is done through a codicil. This is an attached update to the will. These can be done if the change is minor or particularly specific – perhaps you acquired a piece of artwork and want to leave it to a specific friend or family member. Perhaps you now have a grandchild and want to put a specific sum in your will for them.

However, having multiple codicils attached to a will is likely to make more of a mess, and confuse the details of your will. A codicil is a separate document and is just to add an extra detail. As it’s important to keep your will up to date, if there are larger changes, like multiple children or grandchildren being born, you selling your property or coming into an unexpected sum of money, it is worth discussing updating your will officially with your solicitor, as there may be tax implications or more complicated issues with stocks, shares and trusts.

It is also worth remembering that a codicil must be stored with the will – if you attach changes to your will on a codicil and then it can’t be found, the original details will be carried out. You’ll also need to remember that your codicil has to be signed by two independent witnesses, just like your will, in order to be valid.

4) Marriage

Many people forget to update their wills after they enter a marriage or civil partnership, but your existing will often becomes invalid in the face of marriage. If you do not wish to leave everything to your partner, or you wish to have specific arrangements in your will, ensure you update your will after your marriage. In UK law spouses usually inherit everything up to £250,000, and then half of whatever is left on top of that amount. If you own property with a spouse, be sure to consider whether you own it jointly or ‘in common’ as the inheritance will be affected.

Things that won't affect your will:

Divorce

Divorcing your spouse will not invalidate your will, so if you pass away without rewriting it, it may be that your ex-partner inherits your assets. Always be sure to update your will after any major life changes, like separations, marriages or the birth of children.

Executors

A will is about making sure your wishes are carried out after your death, and so picking an executor who you can trust, and who knew you well is always a good idea. Remember that just because you have assigned an executor, it does not mean they have to agree to the task. Whilst your choice will be legally valid, the executor cannot be forced to take responsibility.

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