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Writing a Will

No matter how unlikely death might be it is important to think seriously about writing a Will!

Please note: This article only provides some general information and IS NOT offering legal advice.

If you have an accident on the road, have a stroke or fall ill you may suddenly be unable to sort out your financial and private affairs.

In England and Wales, you are normally free to dispose of your money or assets as you choose provided you are of sound mind and not under any threat or pressure from another person or beneficiary. (Scotland has slightly different rules and you should check those)

Whatever your age, you should make plans to sort out your affairs in case of unforeseen events. A little advance preparation will help reduce distress and confusion for your family if they have to sort out your affairs. The best way to do this is by writing a Will.

Currently, our lives are further complicated by,

  • Unexpected and restrictive social distancing,
  • Reduced access to in person legal advice and help and,
  • Little general knowledge about how to make a legal Will.

“I don’t have much, so do I need to bother with a Will?”

If you do not have a legal Will, the Law ‘acts’ on behalf of your ‘estate’ and does not really have to take account of your wishes or those of family members. This can sometimes be difficult and potentially cause anger and a sense of injustice.

For example,

  • House Owners – if you are in a relationship but are not married or in a registered civil partnership, your partner has no entitlement to any property that is not in joint names. After your death, your property will have to be sold as your affairs are wound up. This could mean your partner loses what they thought was their “home”.
  • Co-Owners – if you share a house with a friend and both have mortgages, you might want to protect their interests in the house for a period to sort out their finances.
  • Owning a company – if you own a company or have shares then they can normally transfer to direct family members. But it is important that the ‘Articles of Association’ allow this. If you want to leave them to someone else then check the articles and you may need special provision when writing a Will or they will have to be valued and sold.

TIP: Urban myth needs dispelling- there is no such thing as a “common law wife/husband”.

Is it easy writing a Will?

Here are 3 ways to make one.

  • Do it yourself – just write one yourself.
  • Use a solicitor – if your finances and property are complex (second homes, children under 18 or divorce related issues).
  • Use free online service providers like charities.

These options have online tools and questionnaires to take you through the process. The free tools are ideal for people with common assets and simple instructions.

TIP: Many charities and some solicitors offer a free service. These are usually an online form, with drop-down options to set out what you want to happen to your estate. Charity services, like Cancer Research free Wills, would appreciate something left in your will.

TIP: Simple Wills, and even those slightly more complicated for business owners, are not expensive to make even using a solicitor- One example is the FREE do-it-yourself download a Will service from Compact Law but you should shop around and get quotes for fee based services.

In all cases, for your Will to be legally enforceable you must follow some rules. You must;

  • Be at least 18 and competent;
  • Have the ‘capacity’ to make/change a Will (“be of sound mind”);
  • Be able to make voluntary choices about what to do with your assets;
  • Put your choices clearly in writing.

If you have significant assets or are going to make some contentious giving in your Will, say leaving your money to a dogs home rather than relatives, then it may be worth getting an assessment of ‘capacity’. This will ensure that your wishes are met and your Will is not contested in the courts.

What makes a Will legally valid?

In addition, and to be legally valid, your Will;

  • Must be signed by you (and on every page in Scotland) and,
  • The act of signing must be eye-witnessed by TWO people who are present and who understand what is happening when you sign the Will and,
  • The WITNESSES ARE NOT ALLOWED to benefit under the Will. So, your family CAN NOT be witnesses, if you want to leave them anything.

Having witnesses sign your Will is critical to validate your will.

Witnesses must watch the act of signing – but they have no right to know what is in your Will and just watch the document being signed.

How to sort out witnesses during lockdown?

There is no COVID waiver for witnessing – in Scotland, the rules have changed to allow solicitors to witness by video link – but this is not yet the law in England, Wales and Northern Ireland.

Identify, two witnesses who you can “meet” within the current rules and stand at least 2 meters away from them or be protected. You can get a signature from one witness at a time by signing twice – though your signatures must be the same!

This could be done:

  • In the communal corridor of a block of flats
  • In a front garden looking through the window of your house
  • Sitting in a parked car with the witness standing beside the car

Once you have signed then the witness must enter their details and sign as well. You should be careful when passing the document over and consider using gloves.

Service Personnel

There are special provisions for Serving Personnel on active service. In all other cases they are treated the same as the civilian population. Service Personnel should contact their support staff who will be able to help them with a Will.

Living Wills are not the same thing

These are instructions for doctors and family to follow if questions about your end of life care arise and you are no longer capable of expressing your wishes.

Remember: This article only provides general information and IS NOT offering legal advice on writing a will. If you have any detailed questions speak to a solicitor.