How to write your own Will – what you must include

Your simple, clear and easy-to-use guide on how to write your own Will.

DIY Wills and homemade Wills are increasingly common nowadays. This article outlines the information which you must include in your Will.

How to write your own Will

More and more organisations and online companies are providing services for you to produce DIY Wills or to write your own Will.

Whilst there are great dangers in writing your own Will, people still prefer it over the conventional Will-writer or solicitor route as they view it as a simple, fast and easy approach.

However, sometimes the effectiveness of the document can be risked by prioritising the quick and easy route.

Nonetheless, whilst this article does not constitute legal advice in itself, it does outline the essential clauses which should be included when writing your own Will, including the following:

•  Opening words or commencement

•  Date

•  Revocation clause

•  Appointment of executors

•  Legacies (or simply just, ‘gifts’)

•  Gifts of residue

•  An attestation clause

The risks of writing your own Will

DIY Wills are seen as the good value option as they are one of the cheapest options available, whether it be an off-the-shelf Will pack from a store or an online equivalent.

The vendors advertise them as the “quick”, “easy”, “simple” or “fast” way to write your own Will.

However, another apt adjective is that they are indeed “risky”.

Writing a Will is more than just writing about what you want to give, and to whom.

If you make any errors drawing up the Will or fail to get it witnessed correctly, your Will will be invalid and ineffective.

Accordingly, your family and loved ones will be left with stress and problems, whether it be through a lack of financial provision or your estate becoming depleted by legal bills and unnecessary tax.

However, DIY Wills are often a suitable option for those with small estates who plan to leave all their property to one person, such as a spouse.

Though, care must still be taken when writing your Will from simple things like spelling names correctly to the more important things which must be included to make your Will effective.

We explore the latter below.

What must I contain in my Will?

1. Opening Words or commencement

The main purpose of this clause is to identify the testator and the nature of the document.

The full name and address of the testator should be stated.

The testator’s occupation may also be included as further identification.

If the testator holds property in any other name, then the Will should also state this other name and indicate that the testator is also known by it.

This will help later on in the application for the grant of representation, otherwise difficulties in proving the identity may ensue.

It is a legal requirement that the testator intended to make a Will in order for the Will to be valid.

As such, a statement that the document is the ‘last Will’ or ‘last Will and testament’ should be contained in the Will.

There is no legal difference between the phrases ‘last Will’ or ‘last Will and testament’.

2. Date

The date may appear in the start or commencement of the Will, or at the end.

There is no legal requirement that a Will should be dated for it to be valid, unless the Will appoints a guardian of a person under the age of 18.

However, it is good practice to date the Will as it provides clarity and certainty in case the testator has numerous Wills and a timeline is needed to provide which takes precedence.

Where the testator intends to marry in the near future, he should state that the Will is made in expectation of that marriage and that he does not wish the marriage to revoke the Will.

This is because, without such a clause, a Will is automatically revoked by any subsequent marriage or formation of a civil partnership.

However, the conversion of a civil partnership to a same-sex marriage does not automatically revoke or affect an existing Will.

3. Revocation Clause

The purpose of this clause is to provide that all earlier Wills and codicils are expressly revoked and should appear near the beginning of the Will.

Without an express revocation clause, any later Will impliedly revokes earlier Wills and codicils to the extent that the later Will is inconsistent with the earlier provisions.

This can cause the administration of your estate to become complex and confusing as there will be more than one source of instructions to navigate through and it may be not what you intended.

An express revocation clause removes this risk by wholly revoking any earlier Will or codicil in its entirety.

Where the testator has another Will dealing with his foreign property, it is necessary to consider whether these are to be revoked.

If not, the revocation clause must make this intention clear.

4. Appointment of Executors

The purpose of this clause is to appoint your executors – the people you choose to administer your estate.

If you do not have any validly-appointed executors, the courts will appoint an ‘administrator’ who will perform the same role.

There is no maximum number of executors you can name in a Will; however, only a maximum of four people can apply for the grant of probate at any given time, so there is no real merit in naming more than four.

The minimum number of executors is one which is often suitable for a small, simple estate where the executor is the sole or main beneficiary.

However, due to possibilities of this appointment failing; such as the chosen person predeceasing you or even divorcing you (the effect of divorce on a Will is that your spouse is deemed to have died on the date of the divorce, so any appointment of them as executor will not take effect), it is prudent to nominate more than one or have a substitute executor.

Indeed, with larger or more complicated estates, it may be useful to have more than one executor, and even to have executors for separate parts of your estate.

The usual nominee categories are:

•  Close individuals you know and trust (such as family or friends);

•  Solicitors or other professionals; and

•  Banks or other trust corporations.

If you do choose a professional executor, you will also need to consider a charging clause.

An executor is unable to profit from his position, unless authorised.

5. Legacies (‘gifts’)

This concerns the gifts of certain assets or money which you may wish to make.

A gift of personal property (such as a car or watch) is known as a ‘legacy’.

A gift of land or realty is known as a ‘devise’.

‘Gift’ applies to either and there are various types.

The main ones are as follows:

Specific Gifts

This is a gift of a particular item of property distinguished in the Will from any other property of the same kind owned by the deceased.

For example, “I give to Julian the gold watch my mother gave me”.

General Gifts

This is a gift of a particular item of property not distinguished in the Will from any other property of the same kind owned by the deceased.

For example, “I give to Tina 100 shares in XYZ plc”.

Demonstrative Gifts

This is a general legacy but where there is a particular fund or source pointed out to satisfy it.

For example, “I give £1,000 to Anna from my Halifax Current Account”.

Pecuniary Gifts

This is essentially a gift of money, such as “I give £100 to my son James”.

6. Gifts of residue

After all specific gifts, debts, funeral expenses and inheritance tax have been paid from your estate, what is left is known as your ‘residuary estate’.

A clause gifting your residuary estate is a very important means as it prevents a ‘partial intestacy’ from arising.

A partial intestacy is where your Will fails to dispose of all your assets or the whole beneficial interest therein.

The gift of residue is essentially a ‘catch-all’ provision to safeguard against any property falling into the Intestacy Rules.

You have many options available in gifting your residue.

You can leave your residuary estate to one individual (such as a spouse) or to numerous in shares (whether in percentages or fractions).

You can even leave it in a trust (for example, a life interest trust) which is especially important for young beneficiaries who are under 18.

Where an intended beneficiary is under the age of 18 on the testator’s death, and the testator does not want the minor’s parents or guardian to give a receipt on their behalf, there will need to be a trust for the minor’s entitlement until he reaches 18 and can give good receipt.

Trusts require further consideration and are not to be taken lightly when drafting; professional advice is best sought in these circumstances.

7. Attestation Clause

The Will needs to be signed and witnessed in accordance with the legal requirements, otherwise it will not be valid or effective.

The purpose of this clause is to indicate that the Will has indeed been duly signed and witnessed to render the Will effective.

Without such an attestation clause, there will be complications when your personal representatives come to deal with your estate.

Indeed, in the absence of such a clause, an affidavit of due execution will be required before probate can be obtained.

This poses complications, especially where the witnesses cannot be traced, or if they can be traced, the inconvenience in obtaining the affidavit.

However, further considerations are to be made in instances where the testator’s capacity may be questioned.

For example, they may be blind or illiterate, or English may not be their first language.

The attestation clause will need to be drafted to reflect this; otherwise, the Will may be exposed to claims of invalidity for lack of capacity.

The takeaway

Of course, this is just a brief overview of the type of provisions which must be included in your Will and there will be more optional ones to consider depending on your circumstances (such as pets, testamentary guardians and whether you need a trust in place).

However, you will hopefully see that there are many risks in writing your own Will and so much care and consideration must be taken.

You may also hopefully see that there are several aspects which must be contained in your Will.

When we draft your Will, we ensure all of these have been included in addition to any further instructions you may have, such as provisions for pets or appointments of testamentary guardians.

We also date our Wills in two places for matters of certainty.

For a free, no obligation chat book an appointment with us today or call Edward Richings on 07368 526296 or email edward@adewills.co.uk.

Download our Free Will Information Guide here for more detailed information.

 

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