Marriage and your Will

will 1Your Will is one of the most important documents you will ever write and what is stated on that paper will determine how your loved ones are cared for after you have gone and the way your affairs and last wishes are to be handled.

Anybody can make a Will as long as the legal age of 18 (12 in Scotland) has been reached and the individual is deemed mentally capable of doing so.  The ‘document’ could be any piece of paper and does not have to follow a set pattern.  However to ensure that your wishes are carried out in the way that you want and to avoid any complications that may arise, it is advisable that your Will should have an accepted formula and comply with legal requirements.

The person must be fully aware of the nature of the document and the writing of a Will must be made voluntarily and without pressure from any other person.

If you should die without making a Will (intestate) and you are married, it does not automatically mean that your surviving spouse will inherit your estate.  This in turn could mean the law will decide who will receive your possessions and depending on the size of your estate, brothers and sisters are eligible to make a claim if they wished to do so.

If you are unmarried but have lived with a partner for how ever many years, without a Will your partner will receive nothing.

Stepchildren will not be classed as your lawful son or daughter unless you have legally adopted them.  These children, if you wish to leave them part of your estate, need to be named in your Will.



Valid Reasons for Writing a Will

The following are other reasons for you to consider for inclusion when writing a Will or amending one:

  • will 3Separation:  You may be separated from your legal spouse/civil partner and may not want them to have anything from your estate.
  • Inheritance Tax.  You can structure your Will to reduce your inheritance tax liability.
  • Divorce.  If you are divorced or have dissolved a civil partnership make a new Will.
  • Guardians.  Children under the age of 18 (16 in Scotland) that are named in your Will need to have a guardian appointed. You can specify who this is to be in your Will otherwise the Court will make the decision on the future of your children.
  • Executor.  Appoint a specific person to administer your estates.
  • Debts. List any debts that are owed to you.
  • Funeral arrangements.
  • How and where you wish to be laid to rest.
  • Specific gifts to charities or individuals.
  • Setting up of Trusts for young children.
  • Your personal belongings

Your Will remains a secret during your lifetime and only you can decide wether or not to show it to any appointed Executors or anybody else.  The Grant of Probate will have to be obtained after your death by your Executor before the Will becomes a public document and copies will then be available to all those that are named as beneficiaries.



Revoking a Will

A Will is valid indefinitely or until revoked and this can happen in a number of ways:

  • if you intentionally destroy your Will.  (This must be physically done as to simply cross out or write ‘revoked’ across the document is not enough to render it invalid). 
  • if part of a Will is destroyed it is only that particular part that will be revoked. 
  • the making of a new Will revokes any previous ones. 
  • in England and Wales (but not in Scotland) by marriage, unless your Will states that it is made with your forthcoming marriage in mind. Your Will is automatically revoked by marriage unless:
    • you were planning to marry when your Will was made.
    • your Will names the specific person you married.
    • you state that you want the Will to be effective during your marriage to that person.

Note: Divorce does not automatically revoke your Will.

If your Will cannot be found after your death but it was previously known to be in your possession, it will be presumed it has been destroyed by yourself unless proof can be found otherwise to state it was not what you intended.

Once written your Will can be changed as many times as you wish.  Any major changes in your life such as getting married, having children or buying a business should be noted with your Will being reviewed and updated, or a new one being written.

Witnesses

The law states that two witnesses over the age of 18 are required to witness you sign your Will.  In Scotland the age is 16 and only one witness is required.  Spouses or beneficiaries (or their spouses) can not be witness to the signing of a Will. 

Executors or spouses of the Executor can act as a witness but not if they are named as beneficiaries.  In short, anybody who is a witness to the signing of the Will can not be a beneficiary.

Storing Your Will

Wills do not necessarily need to be stored anywhere else besides your home, but considering the circumstances of what could happen to a Will, such as being lost when moving house or the threat of fire and flooding.  You may not want your Will to be seen by family members even.  Because of these reasons you could make plans to lodge your Will with a solicitor or your bank. 

Wills can also be left at the Principal Registry of the Family Division of the High Court, a District Registry or Probate Sub-Registry. 

To deposit a Will in this way you can either visit or write to them at:

The Probate Department
The Principal Registry of the Family Division
First Avenue House
42-49 High Holborn
London WC1V 6NP
 
In Northern Ireland, Wills can be deposited with:-

Probate Office
Royal Courts of Justice
Chichester Street
Belfast BT1 3JF
District Probate Office
The Court House
Bishop Street
Londonderry BT48 6PY

The Use of a Solicitor

will 2When writing your Will there is no legal requirement to have it drawn up or witnessed by a solicitor.  If your Will is a simple one and straightforward you can draw it up yourself and choose your witnesses.

Some pitfalls to making your own Will can be:

  • Failing to take full account of all money and property you leave.
  • Being unaware of the formal requirements that are needed to make the Will legal and valid.
  • Being unaware of the effect of marriage, civil partnership or divorce can have on the Will.
  • Not knowing the existing rules to enable dependants or other family members to claim from the estate if they believe the Will has not adequately provided for them.  This could result in the Will being overturned.

It is generally advisable to use a solicitor or to at least have one double check a Will if:

  • Your permanent home is not in the United Kingdom.
  • You have overseas property.
  • You are not a British citizen.
  • You have a business.
  • You want to make provisions for a dependant who is unable to care for themselves.
  • To ensure past family members do not make any claims on your estates.

There are books which provide guidance on how to draw up a Will. These can help you decide if you should draw up your own Will and also help you decide if any of the pre-printed will forms available from stationers and charities are suitable. It is also possible to find help on the internet.

A Living Will

A Living Will allows you to set out your advance wishes with respect to treatments that you would like to be made, or refused, to you following any loss of mental capacity in the future whether through accidental or health reasons.

Although such Wills are not legally binding, health professionals do have to take them into account when faced with making decisions that could affect your health and life.

More information about Living Wills on the Direct Gov website >>