Common Mistakes to Avoid When Writing a Will
Creating a will can be complex; it requires in-depth knowledge of the law and the correct terminology. There are several mistakes solicitors and testators commonly make in devising a will. This can make it difficult for the executor to divide up the estate among the beneficiaries as per the testator's wishes. Here are some common mistakes to avoid when creating a will.
Vague descriptions of beneficiaries
The will might appear clear to the testator, who knows exactly how they want to divide their estate when the will is executed; however, vague descriptions can lead to uncertainties without clarification. Ideally, all beneficiaries should be named in the will to avoid confusion. When this isn’t possible, the will should include full details of the relationship between the testator and the beneficiaries. For example, instead of naming the beneficiaries as cousins, the will should include additional details that describe exactly which cousins the testator is referring to; cousins could be referring to first or second cousins, making it more challenging for the executor to distribute the estate. This type of vague description can result in additional research expenses to find the exact beneficiaries of the estate, reducing the overall amount given to each beneficiary.
Wills that are incorrectly witnessed
Another common mistake is a will that has been incorrectly witnessed. This mistake is typically made when testators create their own will without the correct information or legal advice. A will needs to be signed in the presence of two UK citizens over the age of 18. These citizens can’t be beneficiaries on the will or married to a beneficiary, and they also need to be physically present in the room to qualify as valid witnesses. If the will is not witnessed properly, it will become invalid. If the deceased testator has no previous valid will, then the estate will be distributed in the same way it would be if they didn’t have a will at all, according to the intestacy rules. The estate could be distributed to a beneficiary the testator didn’t include in their first invalid will. Or a beneficiary named in the invalid will may not be entitled to any of the testator's estate. To determine who is entitled to the estate left by the testator, the executive will need to employ probate genealogists to research and find the beneficiaries by creating a family tree and other research methods. The costs associated with the services of a probate genealogist will be deducted from the estate before it is divided among the beneficiaries.
An outdated will
Often testators are unaware that their will has become out of date due to a change in circumstances. There are several reasons why a will can be outdated; this might include a house move, a divorce, the loss of a family member or the birth of another child or grandchild. When the will names beneficiaries and these have changed, it should be updated to reflect the changes and new beneficiaries. This can be done with a codicil, an official alteration document that can be used to make changes to the original will; however, if there are lots of changes, some people find it easier to create a new will. A codicil needs to be signed and witnessed the same way as a will; failing to do so will make the codicil amendments invalid. All testators should keep a copy of their will and understand any changes that will need to be made using a codicil based on the information submitted in the will. For example, suppose a will states a beneficiary that has already died prior to the testator's death, and no clause allows the executor to distribute the estate to the children of the beneficiaries. In that case, the will cannot be executed, and the estate will be divided based on intestacy rules.
These are just some of the common mistakes that are made when a will is not created with due care and attention. Solicitors should always advise any testators of potential issues with their will execution. They should also advise on circumstances where they will need to amend their will to ensure that their death is not considered an intestate death.