Writing a will can be a daunting prospect – not only because it requires you to contemplate your own death, but because Wills are concerned with the precise use of words, often with a legal meaning subtly different from its everyday meaning. Even with the best intentions the layman can go awry. Here are some of the more common mistakes:
Naming the wrong Executor
When choosing an executor for your will, you must make sure it is someone who you is capable of carrying out your wishes. If your Will contains Trusts (such as a right to occupy a property or a gift for a child) then you will need two Trustees. It is also wise to appoint a substitute. It may sound obvious, but you should get their name right. Do they go by a nickname or family name? Do they have a middle name? To make sure they can be properly identified it is sensible to include their address. If they are related to you then you might help identify them by describing the relationship.
Forgetting to include everything
A Will is an expression of your will. Leaving an item to one person in the expectation that they will give it to someone else is a pointless complication.
If you want to leave a keepsake, a gift of money or even a house to someone then describe it and put down their full name and, preferably, their address. Where will it go if the intended recipient dies before you? You should consider substitutionary provisions for any gift in a Will.
The most common error in homemade Wills is a failure to deal with the whole estate. This is commonly dealt with in a clause dealing with residue. Without this clause it is all too easy to leave some assets passing outside the terms of the Will on an intestacy. Often trifling amounts have to be divided between large numbers of beneficiaries who inherit under the intestacy laws – a costly, time-consuming headache for the Executor.
Not updating your will
Your circumstances may change, and if your will doesn’t change in conjunction with them this could cause several problems when it comes to administering your estate. The circumstances of your life and that of your beneficiaries may change in several ways and you may wish to add someone to or remove someone from your will. This may be because of disputes, marital or financial problems, or if one of your beneficiaries dies before you do. Alternatively, you may be single at the time of writing the will and then marry. Any previous Will would be revoked by the marriage and if you do not want to change your Will then you may need to re-institute it. You may develop a closer relationship with step-children or friends and want to include them. Your financial circumstances may change and a Will can be a tool to mitigate Inheritance Tax. Inadequate drafting can have disastrous Tax consequences
A Will must be clearly intended to be one. Any Trust contained in a Will must be clear in its intention and not use words that might suggest that you did not have a clear purpose for the gift. If it is not clear then the trust may fail or you may end up giving something to the Trustee instead of the beneficiary.
Not naming a guardian for your children
If you have sole parental responsibility for your infant children at the time of your death then you need to appoint a legal guardian for them. If you don’t, this could cause a lot of stress for your children on top of the bereavement of losing their parent. By choosing a guardian for your children you can ensure they are looked after and provided for by someone you trust to care for them and preserve their best interests. Whilst you do not need to discuss other appointments in a Will (such as Executor or Trustee) with the appointee, you should discuss the appointment of Guardians with the people you would like to appoint. It is a much greater moral and personal obligation and should not be put upon people without their consent.
Be mindful of the conditions you place on gifts
It is common for testators to place a condition on a gift in a will, like leaving money to someone under the wish that they will use it to do something specific, or complete something, such as studies or a personal project. This is perfectly legal and can often incentivise a beneficiary to complete something, having a positive result for all parties. However, you should be aware that circumstances change and if it is not possible to fulfil your conditions then the gift may fail and a partial intestacy may arise. Dabbling in the complex area of Trust law is highly inadvisable.