3 WRITING A SIMPLE WILL

A simple will is one that is confined to leaving specific assets to named beneficiaries without any conditions or frills.

Who?

To make a will you must have something to leave and be the sole owner of those assets. Once these conditions have been fulfilled, a will can be made by:

• Any sane person over the age of 18 including prisoners and UK citizens living abroad.
• Armed Forces personnel under the age of 18 if on active service.
• Foreigners with land or property in the UK who wish it to be disposed of according to English law.

What?

You can dispose of all of your assets in your will.

• Money: you can leave specific sums to named people.
• Buildings: providing you are the sole owner of any houses, flats or other buildings, you can leave them to whom you wish.
• Land: as with buildings.
• Insurance policies: unless the policy states that only certain people, such as your spouse, can benefit from any money payable on your death, you can bequeath any money due on your death.
• Shares: normally these can be bequeathed as you wish; there may be certain restrictions on how they can be disposed of, especially shares held in a private company.
• Personal items: antiques, jewellery, books, in fact any personal goods can be left to whom you wish. However, the law states that if there is insufficient money to cover any outstanding debts, personal items must be sold to recover the amounts due.
• Instructions: your will can contain instructions such as how you wish your body to be disposed of, funeral details and so on.

How?

There are several ways of making such a will.

You can do-it-yourself: will-making kits are sold by most major stationers and by following the instructions enclosed, should cause no problems. You can of course write your will on an ordinary piece of paper. It is important to get the wording right to avoid any misinterpretations or confusions in the future. Remember, to be legally valid your will must be dated and signed by you in the presence of two witnesses simultaneously who must also sign your will.

It is better to use the services of a solicitor for even the simplest of wills as they know how to construct them to prevent any future problems. Solicitors tend to use archaic terms and phrases, the reason being that such terms, through constant use over many years, are universally accepted and understood in law. Again in the interests of clarity, apart from beginning sentences with capital letters and ending them with full stops, solicitors do not use punctuation. Incorrect punctuation can lead to difficulties in interpretation of the testator‘s intent. Solicitors will normally charge between £40 and £60 for writing a simple will. They will also hold a copy on your behalf at no extra cost.

Will writing agencies provide a similar service to solicitors, usually coming to your home to prepare the will. Although they should be well versed in writing wills they do not necessarily have a legal qualification and will sometimes charge for holding a copy of the will.

Content

Apart from some standard legal phrases that it is customary to use, you are free to write your wish as you wish. The following list is a guide as to what should be included and in what order.

• Begin by stating that this is your last will and testament.
• Your full name and current address and the date on which the will is being made.
• A statement revoking all former wills made by you.
• The appointment of your executors, and trustees if relevant, together with any provision for payment.
• Instruction regarding your funeral or disposal of your body.
• You may wish to include a statement expressing your thanks to people not included in your bequests.
• Full details of the disposal of your estate.
• The Thirty ‘Day Clause’ (see below).
• Naming a beneficiary for any residue after all gifts have been allocated and expenses met.
• Finally your signature together with those of two witnesses.

The Thirty Day Clause: in the unlikely event that your main or sole beneficiary, such as your spouse, should die within 30 days of your death, the wishes expressed in his or her will will ‘kick in’ and the bequests made to your spouse could pass to people contrary to your wishes. Similarly, if your spouse had not made a will, then everything you left him/her will automatically go to his or her relations.

To prevent this happening, you can make a provision in your will appointing another beneficiary should your spouse not survive you by 30 days.

4 CHANGING YOUR WILL

Many people believe that once having made their will they can put it away and forget about it. However, it is advisable to check it every two or three years as your circumstances and wishes may have changed.

There are many reasons why your circumstances could change:

Divorce invalidates any benefits to a former spouse within the existing will unless you have made special provisions. You may decide that you would still like to leave something to him or her when you die, so you must make a new will to include such provisions. Otherwise any bequests to your ex-spouse will go directly to your children (if any).

When you get married, any will that you have previously made becomes invalid and you need to write a new one. Although there are exceptions, it is easier to make a new will.

Death: should an original beneficiary die before you, unless you have made provision for this in your will it will be necessary to appoint another beneficiary to inherit that gift.

If you have additional children or grandchildren since making your will, you may need to include them in a new will.

Change of assets: since making your will you may have acquired new or disposed of original assets, so a new will should be made to reflect this.

Change of mind: you may decide, for whatever reason, to disinherit an original beneficiary and leave that bequest to someone else.

If you wish to change your will, you can either make an entirely new one or write a codicil. This is an addition or supplement to the original will. It must be prepared on a separate sheet of paper and signed and witnessed in the same way as your will. Although a correctly drafted codicil has the same validity as the will, there can be complications. It is always advisable therefore to make a new will. When you do so, make sure that you destroy the original will together with all copies. The law states that when destroying a will, preferably by burning it, it must be intentional, that is, not accidental. Should the original will be accidentally lost or destroyed, a copy is normally accepted as evidence of the existence of an original.

In certain circumstances your will can be changed, the Courts may agree to alter the bequests made in it if they are challenged. You will may also be revoked if it is not correctly signed or witnessed or does not comply with any other legal requirements.

Challenges

Whilst in theory you can leave what you like to whom you wish, this is not quite true in practice. You would be expected to leave adequate provision to your spouse and any dependent children, for example. If anyone believes that they are entitled to more than they have been bequeathed, they can challenge the will in the Courts.

If a man dies and leaves £5,000 to his wife and £100,000 to a donkey sanctuary, she is quite entitled to challenge the will and is likely to receive sympathy from the Courts.

Although anyone may challenge a will, it is normally confined to the following:

• Spouse – can make a full claim.
• Ex-spouse – can claim for maintenance, particularly if he or she is receiving alimony payments. The exception is if the divorce or legal separation took place within one year of death then a full claim can be made.
• Children – can claim for maintenance, especially if dependent upon the decreased at the time of death.
• Step-children – as for children.
• Other dependents – anyone who was being supported by the deceased at the time of death, such as a common law partner or an aged parent.

Conditions

It is quite acceptable to place conditions on the beneficiaries before they can inherit. Examples are that the spouse must not remarry for a defined but reasonable period of time after the death; children and/or grandchildren must reach a certain age before they can inherit; the money can only be used to pay for a university education and so on.

However, some conditions may be considered ‘unreasonable’ and can be challenged in the Courts. If the Courts agree with the challenger, the beneficiary will inherit without complying with the condition.

Each challenge is judged on the facts and circumstances and in most instances the following would be considered to be ‘unreasonable’:

• Not to marry or remarry – except in the case mentioned above, this would be unreasonable.
• Remain celibate – unless the person was already practising celibacy, such as a Roman Catholic priest, this would not be considered acceptable.
• Inducing the break-up of a marriage – if the condition was that the beneficiary should divorce his/her partner within say three years, it would be rendered void.
• Separating children from parents – it is not acceptable to impose a condition that a child is separated from one or both parents.
• Performing a criminal act – any condition which entails the person to break the law would be unreasonable and voided.
• Religious practice – it would be considered unreasonable to impose a condition making the beneficiary convert to another religion or sect.

It is therefore advisable to consult a solicitor before imposing conditions in your will to ensure that they are acceptable.

5 KEEPING YOUR AFFAIRS IN ORDER

To help your executors to administer your estate after your death, it is vitally important that they know where to find all the documents and relevant information relating to your estate. List all documents together with where they are kept. Whilst many items will be at home, others such as share certificates may be with your bank.

Below is a checklist of documents and information that your executors will need.

Documents	Information
your will birth certificate marriage certificate divorce papers passport driving licence bank accounts building society accounts post office accounts pension book insurance policies share certificates Premium Bonds hire purchase/rental agreements unpaid bills.	National Insurance number place of work solicitor accountant insurance broker tax number tax office list of valuables money owed.