Whether you intend to make your own will or have someone else do it for you, the first step is to sit down, think, and decide what is to go into the will. You will need to think and decide about the following:
• Executors. Who are they to be? Are they willing to act for you? Are they younger than you or unlikely to survive you?
• The beneficiaries. Who are they to be? Are they under 18? If so, do you want to give your executors power to release money to them before they reach a certain age?
• Divorce or marriage. Are either of these anticipated for you or your beneficiaries?
• Guardians. If you have young children, who will look after them if you die. Would your chosen guardian have enough money to care for the children, and what should you leave them to compensate for their care?
• Trusts. Are there any existing trusts which might affect inheritance tax? Would it be wise to create a trust through your will?
• Gifts. Have you made any lifetime gives which qualify as potentially exempt transfers?
• Inheritance tax. Is there any way to avoid or reduce the charge to inheritance tax?
• Claims against the estate. Is there a chance that if you leave someone out of your will, they will make a claim on the estate? If so, you should include an explanation for the exclusion.
• Specific items. Are there any such items, perhaps of a sentimental nature, which you want leave to a particular person to keep in the family?
• Specific sums of money. Do you want to leave a sum of money to any particular person?
• Residue of the estate. Who do you want to have the residue of your estate?
• Your body. Do you want to be buried, cremated or perhaps given for medical research?
• Pet animals. What is to happen to any animals you might have?
The format of your will
There is no single way to set out as a will and no fixed formula. However, the following is usual:
• Start with your full name and address. Put in any other names under which you have been no known and include the date.
• Revocation. You should always revoke any earlier will in order to avoid confusion. Always destroy an earlier will when making a new will.
• Marriage. If you are going to be married, you should state that the will is made in the contemplation of marriage to a certain person. If you do not put this in, the marriage will automatically revoke the will.
• Appoint executors. Always appoint at least two executors, so that the death of one will still leave another in place. You may wish to appoint substitutes, in case both your appointed executors die or decline to act. If you are creating a trust, say for infant children, it would be usual to make your executors the trustees as well.
• Guardians. If you are appointing guardians for young children, name them and make the necessary financial provision for them to cover the cost of looking after your children.
• Specific gifts. If you have any particular items to bequeath, describe them clearly. Remember that if you dispose of them before you’re death, the beneficiary will get nothing.
• Legacies. Always give a fixed amount. If the beneficiary dies before you, the legacy will lapse, unless an alternative beneficiary is provided. However, a different rule applies if the beneficiary is your child or other descendant. In such a case, if your child died before you, leaving children of his or her own (your grandchildren), they would share what their parent would have received.
• Residue. This is what is left over after all deaths expenses and legacies have been paid. The traditional way is to give the residue to your executors as trustees on trust for sale with power to postpone the sale. You then instruct your executors and trustees to pay the residue to the beneficiary you decide upon. It is wise to also direct the trustee to pay residue to a further person if the original beneficiary predeceases you.
Essential formalities for a will
- A will must be in writing, either handwritten or typed.
- It must be signed by the testator.
- The testator must sign the will in such a way as to make it absolutely clear that the intention was to give effect to the will. It is therefore important that rather than signing the will on the back or on the side, it should be signed at the end of the writing on the final page.
- The signature of the testator on the will must be witnessed in the presence of two witnesses present at the same time as the testator signed, and who must then attest and sign the will themselves. It is advisable for the witnesses to also sign at the bottom of each page of the will. They should not be named beneficiaries in the will.
Things to note
• If a witness is also a beneficiary or potential beneficiary under the will, they will lose their beneficial entitlement.
• The will should contain an attestation clause. If it does not, the witnesses will be asked on your death to sign an affidavit confirming that they were both present together when the will was signed. A typical attestation clause will say ‘signed by the testator in our presence and attested by us in the presence of the testator and each other’.
• If a testator is blind, the attestation clause will say that the will was read to him, and that having stated that he understood it he signed it, or alternatively it was signed on his behalf.
• In order to make a valid will, a testator must be over 18, unless a soldier on active service.
• It is necessary to have testamentary capacity. This means that the testator understand the nature and effect of the will they are making.
• Marriage and divorce. A will is revoked by marriage. If you marry, you must make a new will. The only exception is when your will is made in anticipation of marriage to a particular person. On divorce, the former spouse is treated on the basis that the former spouse died on the date of decree absolute. They will lose the benefits under a will, but may still be entitled to make a claim against the estate.
A living will (or advance directive) is a written statement setting out in advance what types of medical treatment the maker does or does not wish to receive in specific circumstances, should he be incapable of giving or refusing consent. It must be made and signed whilst the maker is mentally competent.
If you lose the ability to communicate, for example if you develop severe dementia, or suffer a serious stroke, your doctors will decide what treatment they think is in your best interests. Although they may consult with your next of kin, it is the doctors who ultimately decide what to do.
A living will allows you to be the person making the decisions and to give you the peace of mind of knowing that if the worst happens, your wishes will come first. In your living will you can set out what medical treatment you wish to refuse in such circumstances – for example you may not wish to be resuscitated or tube-fed.
You can also use a living will to nominate a ‘health care proxy’: someone, perhaps a friend or relative, who knows your wishes and can communicate them to the medical team on your behalf. Living wills can only be used to accept or refuse legal medical treatment, not to actively end life.