Why would a Will fail?

The question of why would a Will fail is an interesting one and it’s well worth exploring if you’re going through the process of writing your Will. In this article, we are explaining what creates a binding Will and what could make your Will invalid.

A Will is the only legally reliable method by which one may pass possessions on death. It is arguably one of the most important documents that you ever make but it can go wrong if it’s not a binding Will.

We strongly advise seeking professional advice, as a failed will may cause real harm to those left behind. In this article, we look at factors which might interfere with a will’s effectiveness, could make it invalid or when done properly, makes it a binding Will.

Testamentary capacity

 In order to make a binding will the party making the will (the testator) must be of ‘sound mind’. For the purposes of a will, the definition is fairly narrow, and might be taken to mean that the testator (being 18 or over) understands: i) that their beneficiaries will receive their assets on death; ii) the ‘nature and extent’ of their estate (what they’re leaving by their will); iii) the ramifications of including/excluding certain people from the will. Recognition is also given to certain conditions which might affect mental capability. 

A professional will work to address the above. If there is doubt a professional mental capacity test might be required. 

Undue Influence. 

A will must be made voluntarily (as the name implies). In one sense, everyone ‘influences’ everyone with whom they have contact. If, however, it can be demonstrated that one has been coerced (emotionally or physically) into making a will it may fail. Seek legal advice if you think this the case!

Improper signing of the will

A will must be signed by the testator and two independent witnesses (in the presence of the testator). In my experience, the rules relating to signing are often more flexible than people imagine. Notwithstanding, care must be taken to ensure that the witnesses meet certain criteria (e.g. of sound mind, sighted etc.). As part of regulation, will writing firms are required to advise on signing and to support if required. It’s worth mentioning that emergency law, introduced during Covid to permit video witnessing has now lapsed. 

Forgery

Submission of a forged will e.g. one signed by another, is a surprisingly common and self-explanatory reason for a will’s failure. 

Revocation

All too often, in the absence of proper advice and access to facilities, a will is accidentally revoked. The most common means by which this happens is loss. A will may be ripped up by a testator in English law, in order to revoke it. If a will is lost whilst in a testator’s possession, this is assumed to have happened. Revocation may also arise as a result of defacement of a will e.g. by water damage or well meaning testators seeking to amend. Always seek advice before attempting to change a will. 

Provision for family

In addition to the above, one should bear in mind the Inheritance (Provision for Family and Dependents) Act 1975, which places some demand on the testator to gift to dependents, children and spouses. 

Challenges to a will

Even if a will ultimately holds water legally, challenges and arguments arising therefrom are often destructive and best avoided. A well written letter of wishes may explain a testator’s decision making process and ameliorate feelings of bitterness in those left. Dialogue is also to be encouraged.

The vast majority of those making wills appoint professionals to do so. If you would like to discuss progressing such a document, please contact us to get the ball rolling.

When do you need probate?

I shall begin this article by clarifying two key points that often arise:

  1. Probate describes the power/authority given to executors (who may be named by a will), by the courts, to undertake their job of executing a will. It is not the entire process of ‘sorting out’ a dead person’s affairs. This authority is conferred on the executors by a ‘grant of probate’ given by the courts.
  1. Probate is required in most cases. The existence of a will does not remove the need for probate. Probate may not be required if the deceased’s estate was very small or comprised largely of ‘jointly owned’ assets e.g. bank accounts (which may pass outside of the will by survivorship).

In essence, probate is needed whenever, an executor (or administrator) needs to ‘step into the shoes’ of the deceased to act on their behalf, and under the terms of a will. Institutions such as banks have their own rules/thresholds (which vary) by which they allow access to a dead person’s bank accounts in the absence of probate. So, if an estate is small and comprised only of bank savings, you should ask their bank first, if probate is needed. 

What is the difference between probate and estate administration?

Returning to my earlier point, ‘estate administration’ is the process of ‘sorting out’ a dead person’s affairs. Probate falls within this umbrella definition. There is always some estate administration to do after death, probate is not always required. 

What are letters of Administration?

Letters of administration (a term used interchangeably with ‘Grant of Representation’) are the documents, issued by the probate registry, to executors, allowing them to act. They are public documents and their presentation may be requested of executors by e.g. banks. 

Is the process complex and what expert knowledge is needed?

If there is a will, executors are able to apply for probate. Obtaining this authority may take some time. A rough valuation of the deceased’s estate should be made before application, as whether or not the person needs to pay inheritance tax may affect the process of application. The executors are charged with identifying all of the assets and debts of the deceased, also all creditors and beneficiaries. They must ensure they have the latest will.

The steps laid out may be administratively onerous, moreover, results may be imperfect, as such there are procedures such as placing advertisements in certain publications and obtaining multiple valuations for e.g. property , which should be followed. 

It is important to remember that an executor may be held personally liable for errors in administering an estate, so it is important that care is taken. 

What does professional assistance look like?

Many executors engage professionals (e.g. a solicitor) to support them in administering a dead person’s estate. This approach has a number of benefits, non-exhaustively: i) it saves time; ii) introduces impartiality to the process; iii) professionals carry insurance in case of error (mitigating executor liability); iv) tax efficiency can be considered. 

You should certainly ‘consider’ the use of professionals in the following situations:

  • The value of the estate is over the Inheritance Tax threshold.
  • There are doubts about the validity of the will
  • The deceased had dependants who were deliberately left out of the will, but who might want to make a claim on the estate
  • The estate has complex arrangements, such as assets in trust
  • The estate is bankrupt
  • The estate includes foreign property or foreign assets

Probate is potentially complex and must be undertaken with care, further, there are time constraints. If you have doubts please contact us now, for a free initial consultation (book a free consultation at www.confidencewills.co.uk).

Starting your own estate planning business – with help from Confidence Wills.

Why choose a Will Writing franchise and why select the Will Writing Industry?

To work in the Will writing industry is uniquely rewarding and in this article, we will explain why you should consider a Will Writing Franchise. Commercially, markets are vast (no less than half of the population lack an up to date Will) and largely recession-proof (enquiries rose by up to 300%1 across the industry during the Covid outbreak).  

Personally, the role confers respect on the effective professional and great peace of mind on clients, certain of whom, particularly at end of life, may find such peace in short supply from other sources. 

A Will writing franchisee typically receives key infrastructure and tested processes, unavailable to those beginning from scratch and alone. Such support is potentially very attractive to those considering a move to the Will writing industry. Whilst markets are deep and sustainable, the industry is mature, as such efficiency, marketing, price pointing and brand development require a good level of refinement to produce strong revenues. Moreover, the skills demanded by Will writing and estate planning are quite diverse. Drafting, administration, advise, sales, marketing, taxation etc. the list goes on. A franchisee, usually receives support on these elements, allowing them to: either focus on their strengths and place these at the heart of their offering long term; or develop a broader skill set, sequentially and in their own time. Confidence Wills prides itself on supporting individuals of integrity and drive, with diverse skills. As a firm, we are interested in the individual’s attitude primarily and will often work through tailored support.  

 

What’s it like being a Will Writer?

In terms of the pure job satisfaction, Will writing, at least in my experience (as the founder of Confidence Wills), has an enormous amount to offer. I consider myself comparatively introverted, though take great pleasure from understanding people’s challenges and helping them. In practice, this is what you spend most of your time doing. 

No two meetings are ever the same. Often intimate, unusual, even funny, the ambit of such interactions extends into a future from which the client is to be absent. Through effective communication, they seek to pass variously broad and profound feelings, through the narrow band width of language to create a robust Will. 

For my part, such interactions engender a sense of connectedness, a bridge between past and future, that I haven’t encountered elsewhere. They are free of transactional ‘junk’ such as status and ‘care’, for the client, emerges from the humanity of the experience, rather than any company mission statement. 

Making first contact with clients and meeting with them, constitutes the majority of your day. Refinement of technical skill and administrative tasks, are processual, and if managed with consistency, do not impose undue demands. 

 

How to help clients. How does Confidence Wills help you to achieve that?

Will writing companies are diverse and each has their own personality. In a functioning market one would expect businesses to stand or fall on tangible or causally complex factors such as these. 

Speaking as a franchisor, active in the market for some time and who has established a successful estate planning business, I must say that, on the whole, the tools offered by different franchises, are not wildly dissimilar, in essence. More variable is the composition (perhaps the culture) of the offerings, by which I mean the degree of individualisation vs standardisation or personal service vs automation. A few offer novel products at high prices, by all means explore these and I don’t blindly disparage anything, however, having examined many of these for our own offering, I really do urge caution. A number of have recently ended up in the news (in a bad way), and present a risk of sudden failure (or worse, liability) to the unwary*.

Confidence Wills stands for care. We seek to go above and beyond and are not a ‘pile ‘em high, sell ‘em cheap’ outfit.  We don’t ration the time given to our clients (or indeed our franchisees), and by virtue of mutual trust seek to develop ongoing relationships with them. As a consequence we tend to do a good deal of repeat business and arguably generate more revenue per client over time than others, as a consequence of our holistic approach. 

This approach is not for everyone but if you would like to build a sustainable business with a brand that has proven it can deliver, then we would encourage you to meet with us via Zoom or in person. From that, you ought be able to gauge whether our approach is suitable, in fairly short order.

 

What does a Will Writing Franchise Cost – and what can you earn?

Various Will Writing franchises are available with costs ranging to high six figures. Will writing demands comparatively little capital, so is accessible to more. Confidence Wills, aims to be at the lower end of the will writing franchise market itself in terms of start-up cost, we find this allows us to screen and spot talent in a wider group. 

Setting up fees which amount to training and initial infrastructure, are to a degree modular and usually come in at around £4-6,000. Confidence Wills views its franchisees as partners and is somewhat selective in who it chooses, since the fee structure is profit related, and we aim to protect the brand for all involved. Depending on your style and strengths there are optional support packages such as lead generation that may be taken. 

In terms of earnings, there are Will writers who earn tens of thousands of pounds a month; those that earn a few thousand and perhaps work only a few hours per week (there is significant lifestyle potential in the work). The business is there for you to make what you want of it. 

 

What do other franchisees have to say?

“Confidence Wills Franchise team has been caring and straightforward from day one. I have had access to the senior team, more or less as I needed it, which has been amazing. I think of the Confidence Wills Guys as my friends and an irreplaceable relationship from a business point of view.” JP franchisee, Salford.

 

*  https://www.thisismoney.co.uk/money/news/article-10731531/Are-unregulated-pre-paid-probate-plans-new-Wild-West.html

 

1 Financial Times/Confidence Wills enquiry data