- A will is arguably the only reliable means of distributing an estate on death.
- To be valid a will must meet certain criteria.
- Only the original will usually carries any legal weight (copies do not).
- Even where a will is valid, gifts within it may themselves fail.
I would assert that a last will and testament is the only reliable means by which a testator (one making a will) may reliably exert agency as to what is to happen to their estate on death.
Whilst other means of passing property exist e.g. death bed gifts, it would, in my view be a brave individual who relied on such an approach (in such ‘death bed’ instances a particular type of will, which gives a great deal of flexibility to those trusted by the dying, might be preferable to ‘donatio mortis causa’).
For the avoidance of doubt, only the original version of a last will and testament carries any legal weight. There exists provision in English law, for an individual to rip up a will and to so revoke it. In order to give effect to this law, if an original document (bearing wet signatures) cannot be found, this is assumed to have taken place and the will revoked, unless it can be proven otherwise.
Assuming an original will can be located, it must meet certain criteria in order to be legally valid, these include, but are not limited to:
- The document has been drafted correctly.
- The document has been executed and witnessed correctly.
- The document has not been lost, destroyed or mutilated in such way as to revoke it.
- The person making the will had mental capacity to do so at the time.
- The person making the will was not subject to undue influence from a third party.
- The person making the will was over 18 years of age.
In the absence of a valid will, intestacy law may apply, this legislation deals with the distribution of assets to family members in the event that no valid document is produced. The manner in which these are distributed is summarised in the diagram included (taken from Confidence Wills guidance document 2020).
It’s worth clarifying that even though a last will and testament may be valid, gifts set out therein, may themselves fail for a number of reasons. These include (but not limited to):
- A beneficiary (or spouse/civil partner thereof) has witnessed the will.
- The gift is to a spouse/civil partner with whom divorce or dissolution has taken place.
- The beneficiary has pre-deceased the testator (lapse).
- Property or assets gifted by the will do not form part of the testator’s estate (ademption).
- There are not enough assets in the estate to settle all the gifts of the will (abatement).
- The gift is not clearly enough described in the will (uncertainty).
- Unlawful killing. If a beneficiary unlawfully kills a testator, they may not benefit (unless insane!).
- Disclaimer, beneficiaries may simply refuse to accept a gift.
There are innumerable other challenges which might arise in the creation and application of a last will and testament e.g. lack of clarity over what constitutes the testator’s estate. It is critical that anyone considering making a will seeks professional advice from a regulated will writer. For the avoidance of doubt, the foregoing article refers only to wills made in England and Wales.
If you would like to learn more about any of the issues described here, visit Confidence Wills now at www.confidencewills.co.uk and book a free consultation.