Christopher McNeill looks at some common mistakes in Will Writing
Many wills are as simple in effect as the testator (the person making the will) intends. Family beneficiaries are named as beneficiaries and are also appointed as executors to deal with the estate they inherit. It can still be surprisingly easy to go astray, even in the first section of the will.
A will normally starts by making clear that any previous wills are no longer valid and the new will expressly revokes them. Sometimes this unintentionally revokes a separate will made to deal with assets outside the UK when there was no intention to override that other will. Instead, the new will needs to make clear that the will covering non-UK assets is not revoked unless that really is the testator’s intention. The case law on this is still not wholly clear so it is better to make the intention certain in the will itself.
Giving a specific asset to a beneficiary is always possible – but do you still own that asset at death? Gift of bank accounts have often failed when the testator changed banking arrangements after making the will, not realising the gift was not of the money, which is now in another account, but of the account itself which no longer exists.
Interests in jointly held freehold and leasehold property can be given away in a will but only if the interests in that property are held by the owners as “tenants in common” and not as “joint tenants”. If the testator has not checked the title to see if this really is the case, the interest may simply pass to the surviving joint owner(s) and the gift in the will is of no effect.
Sometimes, the testator has failed to cover all the assets that are in the estate, usually because individual assets have been listed and no clause has been included to cover anything not expressly mentioned. The rules of intestacy, not the testator, then decide who receives the assets not mentioned in the will.
It is also surprisingly common for a will to be distributed in various percentages – which do not add up to 100%! Often, this is because the testator has had a change of heart in the course of making the will but it has not been checked that the new shares still come to the same total.
There are also many ways of introducing uncertainty into the appointment of executors and trustees, even when solicitors or other professionals are appointed to act. It may be tempting to keep everything “as simple as possible” but what is often simpler in the long run is to talk to an experienced professional who can help avoid these and other common mistakes.