Who Can Make a Will?
To be entitled to make a will you must have valid testamentary capacity. This means that, in addition to being over the age of 18 (unless you are seaman at sea or you are in the armed forces and on active military service), you must be able to
understand roughly what making a will means, i.e. the nature of the transaction you are entering into;
be capable of having a rough idea of what you have to leave;
be aware of those you have a moral obligation to benefit and those you are benefiting in the will; and
understand in broad terms the effect of the will.
You may have testamentary capacity and be able to make a valid will even though you are of unsound mind and suffering from delusions in some respects, as long as that insanity does not affect the above points. For example, you may have good testamentary capacity even though you are convinced that the world is a cube.
Your will will not become invalid if you become totally insane or otherwise lose your testamentary capacity after making it, as long as you had testamentary capacity at the time you made it. Even if you are normally mentally incapable, you are legally able to make a valid will in any lucid period.
If you ask someone else, for example a solicitor, to prepare a will for you, the will will be valid if you had testamentary capacity at the time you gave the instruc tions for the preparation of the will, even if it is doubtful whether you had testamentary capacity at the time you signed the will, provided that at the time you signed the will you understood that it put into effect the instructions which you had given for the will.
If you do not have testamentary capacity the Public Guardianship Office can be asked to arrange for a judge having powers under the Mental Health Act 1983 to make a will for you provided that you are over the age of 18. Such a will is known as a statutory will and is to benefit those for whom you might be expected to benefit if you were not mentally disordered. Although an application for the making of a statutory will is expensive, it might be justified, especially if there have been major changes in tax laws or your financial or other circumstances since you lost your capacity, or made your previous will. The Power of the Guardianship Office to make a will includes power to revoke an existing will. The Public Guardianship Office can be contacted at Archway Tower, 2 Junction Road, London N19 5SZ, tel 0845 330 2900, fax 020 7664 7715.
If your will is rational on the face of it at the relevant time there will be a rebuttable presumption that you had full testamentary capacity when you made it. If your capacity is likely to be challenged it might be sensible to ask your doctor to examine you and to witness the will.
The fact that you are unable for physical or educational reasons to read or write or that you can only sign your name by making your mark does not prevent you from making your will; these difficulties can be dealt with in the wording of the will.
If you have the necessary mental capacity and are a member of the armed forces engaged in actual military service or are a seaman at sea, then notwithstanding the fact that you may be under the age of 18, you can make an informal will which will not be revoked by merely leaving the service or, in the case of a seaman, returning to land.
What Can Be Left in Your Will?
General Prinicples
The law as to whether or not you can leave moveable property (i.e. anything other than land, which includes non-portable buildings on land) by your will is decided by the law of the state in which you are domiciled, i.e. the state which is considered to be your permanent home at the date of your death. The law as to whether or not you can leave immoveable property by your will is the law of the state in which the land is situated.
At birth you have the same domicile as your mother if you are illegitimate or your father is dead, otherwise the domicile of your father. This is known as your domicile of origin. You can exchange your domicile of origin for what is known as a domicile of choice by abandoning your ties with the state in which you have your domicile of origin and moving to live in another state with the intention of making it your permanent home. A new domicile of choice can be acquired as frequently as you wish, but you can only have one domicile at any given time. Those who are mentally incapable or under the age of 16 have the domicile of the person upon whom they are dependent and their domicile will follow any change in that person's domicile. This is known as a domicile of dependency. A woman who married before 1 January 1974 acquired her husband's domicile by virtue of the marriage, but after that date she can change it and her domicile is no longer dependent upon her husband. There are exceptions to the above rules for inheritance tax purposes, in that for those purposes,
you are deemed to retain your domicile in the relevant part of the United Kingdom for three years after leaving it and
you are deemed to be domiciled here if you have been resident here for any part of 17 or more of the 20 preceding tax years.
The word 'state' is used in connection with domicile rather than 'country' because domicile is defined not by national boundaries but by places which have their own indepen dent system of law.
If your domicile is England and Wales you can dispose by will of anything in England and Wales and any moveable property which you have abroad and you can dispose of it to whom you wish and to the exclusion of your family unless
you have restricted yourself by contract, e.g. by entering into an agreement to create and not revoke mutual wills; or
it is something which does not pass to your personal representative on your death, e.g. jointly owned property held as joint tenants; or
it is a contract in which your personality is an essential element, e.g. a contract to paint a portrait or to write a book; or
it is property you do not own (e.g. assurance policies taken out by you on trust for another) and over which you have not been given a power of appointment; or
the property has been 'nominated' and the nomination has not been revoked; or
it is property the disposal of which is restricted by its nature, e.g. some rights in immoveable property such as a personal licence or permission to use or cross the land of another, or shares in some small companies; or
it is your body; or
statute law restricts your right to dispose of it in the way you wish.
How To Write Your Own Will
Your will must be made in writing
Your will can be in any form of writing, handwritten, typed or printed, and in any language, but it must be in writing and any other expression of your wishes will not be effective. Oral expressions of your wishes and wills recorded on sound-tapes or videotapes are therefore not valid wills.
Your will should be written legibly because what cannot be read cannot be enforced. You do not necessarily have to write out the will yourself but if a beneficiary writes out the will by hand for you, suspicions might arise as to whether or not you knew of and approved of the contents of the will when you signed it and it could be challenged.
Your will can be written on any material, on paper, parchment, linen or carved in stone if you wish. Certain stationers sell 'will forms' upon which the basic parts of a will are pre-printed and on which you only have to fill in the blanks, but for some reason or another people always seem to have difficulty in filling them in correctly.
As in all other matters relating to wills, when considering the material upon which your will is to be written, it is better to keep it simple and use a blank sheet of good quality paper because with good luck and a healthy lifestyle it will be many years before your will will be required to be proved! If you use ink, use permanent ink. Although to do so would not make your will invalid, for reasons of security do not use pencil or a writing media which can be easily erased. Not everyone is honest in financial matters!
Your will must be signed by you or someone in your presence and at you request
The signature need not be your full name or indeed your name at all as long as a court will be satisfied that the mark which is made was intended as your signature and that it was intended to authenticate the document as your will. Solicitors often tell clients to sign their will in the same way as they would sign their cheques on the basis that if the mark intended as a signature can extract money from their bank account it can do anything! An inked thumbprint has been held by a court to be a sufficient signature, as has the testator's initials impressed by his seal, but the courts have not yet accepted electronic signatures and it is best to keep it simple and avoid courts rather than tempt fate by using such esoteric forms of authentication.
In whatever way your will is signed, it must either be done by you personally or by someone for you, at your direction and in your presence. To avoid problems, you should always sign your will personally or at least make a mark as your signature if you possibly can. If you are physically unable to sign or make your mark, e.g. because of paralysis or because you are blind, you can ask someone to sign the will for you as your will but they must do so in your presence and in the presence of the required witnesses.
Your Signature on the Will Must Be Made or Acknowledged By You in the Presence of Two or More Witnesses Who Must be PRESENT AT THE SAME TIME If all the witnesses to your will are not with you when the will is signed, you must confirm to them that the signature is yours and all the witnesses must be there when you do so. It is not sufficient for you to confirm it to each witness on separate occasions or for you to sign in the presence of one or more witnesses when the others are not there and subsequently to confirm the signature to the absent witness or witnesses.
Although the Wills Act 1837 refers to two or more witnesses it is only necessary and usual to have two witnesses to your signature, but they must be of age and mentally capable.
Each witness must sigh the will and either sign of acknowledge his signature in your presence
You must be present when the witness signs or acknowledges his signature, but there is no necessity for each witness to be present when the other witness signs.
It must be apparent that you intend to give effect to the will by signing it
In practice your signature and those of the witnesses should appear at the end of the will to show that they are intended to give effect as your will to all that goes before the signatures. If words appear in the will after the signatures there can be problems in that the Probate Registry will insist on the witnesses swearing an affidavit or making an affirmation to confirm that the words were in your will when it was signed and not added later by you or by anyone else and the witnesses might not then be alive, traceable or able to recollect. If the words were added later, of course, they would be ineffective and invalid and would not be admitted to probate.
If there are more pages than one it is as well for yourself and the witnesses to also sign at the bottom of each page so that nothing can be added later to the page and for the pages to be numbered so that no further pages can be inserted.
It is usual to indicate in the wording of the will that the document is signed as your last will.
A few general words on the subject of signing the will and witnesses
The witnesses are witnessing your signature. It follows therefore that you must sign first or there will be nothing for them to witness. The witnesses must be in a position to see you sign, not blind and their view must not be obscured. The witnesses need not know the contents of the will or even that it is a will, because it is your signature that they are witnessing and not the document.
When are you and the witness in each other's presence? When each can see what the other is doing, even if you are not in the same room.
All the above requirements as to the witnessing of wills might seem complicated but if you ensure that:
yourself and two adult witnesses are all present in the same room before any signing begins
the witnesses are not blind
the witnesses are not beneficiaries or the executors of the will or the spouse or civil partner of any beneficiary or executor (if they are the will will be valid but the beneficiary will lose the bequest and the executor possibly his right to expenses unless specifically authorised to charge them or the will is an informal military one or a seaman's will made at sea)
the witnesses are likely to be traceable if required when you die
you sign first followed by each witness
each witness signs with his usual signature and follows it by his printed name and his address and occupation or status (married woman, widow, etc.)
no one leaves the room before the signing is complete there should be no problem.
Writing a Will: Conventions & Format
There are other traditional practices which, while they are not legal requirements and will not invalidate your will if they are not followed, are conventions used in the layout of wills and which will give your will a classy, professional appearance. These are as follows:
Format
1. The will should be laid out in paragraphs numbered in sequence after a first paragraph which confirms the nature of the document (will or codicil) and states your name, address and occupation or, if you are a woman without an occupation, your status (married woman, widow etc.). The first words of each paragraph should be in block capitals and underlined.
2. The order of the paragraphs should be:
a) a clause beginning I REVOKE to revoke all previous testamentary dispositions if that is your intention;
b) a clause beginning I APPOINT which deals with the appointment of executors and trustees;
c) a clause beginning I GIVE which sets out any legacies of money which you might wish to make;
d) a clause beginning I BEQUEATH which sets out any gifts of specific articles which you wish to make;
e) a clause beginning I DEVISE which sets out any gifts of freehold land or buildings;
f) a clause beginning I GIVE DEVISE BEQUEATH AND APPOINT which deals with any remaining property you may have to dispose of,
g) separate clauses or sub-clauses giving your execu tors additional powers or excluding powers which the law gives them by default;
h) a clause beginning I EXPRESS the wish, which sets out your wishes in relation to your funeral and the disposal of your body after your death;
i) a clause beginning IN WITNESS explaining that you have signed your will and stating the date on which it is signed unless the date has been stated in the introductory paragraph; and finally
j) a clause called an attestation clause that explains the circumstances in which the will was signed and witnessed beginning SIGNED. If you are unable to read this clause should explain that the will had been read over to you before you signed it and the two witnesses then signed it in your presence. In these circumstances it should also state that you understood and approved the will. If you are unable to sign the will, the clause should explain that it is signed by a named person for you, at your request and in the joint presence of yourself and two witnesses, who then signed the will in your presence and the presence of the person who signed for you.
3. All names should be set out in full, in capitals and underlined.
4. Sums of money should be stated in words in underlined block capitals followed by the sum in brackets in figures.
Checklist: Before You Sign
Have you included or considered the following matters?
The date the will is made.
Your full names (including any alias or nicknames in which you have property) and your status or occupation and address.
The executor's full names and status or occupation and address.
Have you included a co-executor or an alternative executor and his full names and status or occupation and address in case your first choice dies before you?
Are you contemplating marriage to a particular person in the near future or entering into a registered civil partnership?
Have you set out in your will or in an accompanying letter any burial/cremation/funeral wishes about which you feel strongly?
Have you checked whether any property you own with another person is owned as beneficial joint tenants or tenants in common and remembered that any land or property of which you are a beneficial joint tenant cannot be left in your will and will pass to your co-owner on your death unless you sever the joint tenancy? If there is any jointly owned property in respect of which you are a beneficial joint tenant and which you wish to leave by your will, you should sever the beneficial joint tenancy and create a tenancy in common in your lifetime. You cannot sever it by your will.
Are any pecuniary legacies you have left to bear their share of inheritance tax or is the tax on them to be paid out of the residuary estate?
Are any gifts of specific articles you are leaving to bear their share of inheritance tax or is the tax on them to be paid out of the residuary estate?
What is to happen to the residue of your estate, or the share of the residuary estate as the case might be, if the beneficiary dies before you?
Do you wish to make any of your bequests contingent upon the happening of any event, for example contingent upon survival by a specified period or the attainment of a specified age?
Do you wish your executors to have power, in their discretion, to use money from a bequest or from the income it produces for the benefit of beneficiaries whose gift is contingent upon the happening of any event (for example contingent upon survival by a specified period or the attainment of a specified age) before the event has occurred?
Have you stated who is to be entitled to give your executors a valid receipt and discharge for any gift to a charity or to an under age beneficiary?
If you are a father and were not married to any of your children's mothers at the time of the child's birth, has a parental responsibility agreement been completed and registered or does one need to be registered or completed?
If you are a father and were not married to any of your children's mothers at the time of the child's birth, do you need to have the child's birth re-registered to show you as the father in the registration particulars?
Have you appointed a guardian for any infant children you might leave and in respect of whom you have parental responsibility? Have you made provision in your will for their maintenance from the estate?
In absence of fraud or gross negligence on their part, are your trustees to be relieved from responsibility for any mistakes they might make?
Do you wish to exclude any excludable statutory provisions?
Do you wish your executors to have additional powers to those always given to them by law, for example power to purchase assets from your estate, or to increase their powers to continue any business you have or to advance movies to contingent beneficiaries or the executors' powers of investment?
Do you wish your executors to receive a legacy or payment for the work they do on behalf of the estate? If so, unless they are professional trustees, you must include a clause in the will expressly authorising payment.
Do you wish to include a clause to the effect that legatees shall receive interest on their legacies calculated from the date of your death instead of the usual rule that they are only entitled to interest calculated from the date of death if the legacies are not paid to them within one year of death? Such interest is, of course, paid out of your residuary estate and at the expense of those to whom you have left your residuary estate.
Have you considered any unusual family circumstances you may have, such as a disabled spouse or children and any beneficiaries with special needs?
Have you made sufficient provision in your will to prevent challenges being made to it under the Inheritance (Provision for Family and Dependants) Act 1975 as amended and do you wish to leave a statement indicating why you have made no provision or only limited provision for possible claimants?
Have you considered the effect of any previous marriages, civil partnerships and divorce settlements and whether they exclude any claim against your estate? If they do not, consider whether or not you have made reasonable provision for possible claimants e.g. your ex-spouse, by your will.
Have you made it clear whether any legacies are to be paid in addition to or in substitution for any debts you owe to your beneficiaries?
Have you made a will to deal with any property you own which is not in England or Wales and is that will in accordance with the law of the relevant state in which the property is situated, both as to the formalities for making the will and the substantive law of that country?
Do you need to say in your will in what state you consider yourself to be domiciled?
Is it appropriate to state in the will whether it is a mirror will or mutual will?
Have the trustees of any pension scheme of which you are a member been notified of the way in which you wish them to exercise any discretion they may have in relation to any potential benefits arising from your membership?
If you have, or might have, under age children, have you dealt with guardianship in your will and made provision for maintenance of the children by the guardian?
Have you considered the effect of inheritance tax on your estate? Could your will be made more tax efficient and still carry out your wishes? Have you considered making nil rate band gifts, the needs of your surviving spouse and the assets and income which she has in her own right, whether
or not a survivorship clause should be included in the will, what are the needs of the individual beneficiaries and should a generation be skipped?
Have you included in your will everyone you wish to benefit?
Have you considered what is to happen to any pets you might own at your death and included the appropriate provisions in your will?