MAKING A WILL

No one likes to think about making a will, but it’s important to have arrangements in place to ensure your family is taken care of. Making a will can be quite straightforward and it won’t cost the earth provided you’re aware of the major pitfalls.

A will is a written document that sets out what you would like to happen to your possessions after you die. A will must be signed and witnessed.

When you die, your possessions are called your ‘estate’. A ‘testator’ is a person who writes a will. If you die without leaving a will, you die ‘intestate’.

Here you can read information about how to make a valid will, the things you should consider when writing your will, and what will happen if you die without leaving a will.

REASONS FOR MAKING A WILL

You do not have to make a will. If you die without making a will, your estate will be distributed according to the law on succession. This means that your estate will be distributed between your surviving family members in the way that is set out in law.

If you want to have a say over who inherits all or part of your estate, you should make a will. You can also complete and keep an updated list of the things that you own. You can use a form to make it easier to identify and trace your possessions after you die. You should keep the list in a safe place.

HOW DO I MAKE A WILL?

You can write a will yourself, or have a solicitor write it for you. A solicitor can advise you about your will and can make sure that your will is legally valid. If you write your own will, you should make sure that it is valid. It can only be valid if:

• The will is in writing

• You are over 18

• You are of sound mind

• You sign or mark the will or confirm that you made the signature or mark in the presence of two witnesses, present at the same time if possible (the witnesses do not have to see the contents of the will).

• Your two witnesses sign the will in your presence

• Your will is signed by both witnesses in your presence

• The signature or mark is at the end of the will.

Gifts left to a witness or their spouse or civil partner are not valid. If you want to change your will after you make it, you can add a codicil (amendment or change) to your will.

WHAT SHOULD MY WILL CONTAIN?

You do not have to have your will in any set format. However, it is important that the will has the following:

• Your name and address.

• A statement that says you revoke or disown all earlier wills or codicils.

• The appointment of one or more executors, or people who will carry out your wishes in your will after you die, along with their names and addresses.

• Your will should be dated and signed by you and your witnesses. This statement is called an attestation clause.

RESIDUARY CLAUSES

A residuary clause, is a section in your will that sets out how property not specifically dealt with in the will should be distributed. You may leave a part of your estate to someone, but that gift (sometimes called a bequest) could later be found to be invalid. When this happens, that part of your estate becomes part of the residue of your estate, along with other things that are not specifically mentioned in the will. Your residuary clause could say that anything not identified in your will should be left to someone.

SIGNING YOUR WILL

You have to sign your will in the presence of 2 witnesses. They have to sign the will to attest (witness) that you have signed the will. If you are unable to sign your will because you cannot write, you can make a mark that should be witnessed like a signature. If you are physically disabled and are unable to sign or mark your will, you can direct an agent or representative to sign your will for you. Your agent must sign the will in your presence and on your direction and your two witnesses must be present.

What does being ‘of sound mind’ mean? In order to make a valid will, you must have, in the eyes of the law, the mental capacity to do so. This means you must understand and be able to decide what you are doing. If you have a medical condition that could affect your ability to understand and make decisions about what you should put in your will, you should ask your doctor or specialist to certify that you are capable of making a will.

UNDUE INFLUENCE

If you are acting under undue influence, this means that you are acting under pressure from another person or persons. Your will can be challenged on the basis that you were acting under duress when you made it and it doesn’t reflect what you actually wanted.

Provisions for your spouse, partner and dependents: Your spouse or civil partner has a ‘legal right share’ to your estate. This means that they are entitled to benefit from your will, even if you do not provide for them in your will. Your children also may have entitlements. Partners (that you were not married to or in a civil partnership with) may also be able to claim a share of your estate.

PROPERTY ABROAD

If you have property in other countries, you should make a will in each of those countries due to possible differences in succession law.

CHANGING OR REVOKING YOUR WILL

If you want to change your will, you and your witnesses must sign or initial your will in the margin of the page beside the changes. You can also change your will in the form of a memorandum or written note that is signed by you and your witnesses that refers clearly to the changes.

Your will is revoked automatically in certain situations:

• If you marry or enter into a civil partnership, your will is revoked, unless the later will was made with the marriage or civil partnership clearly in mind. If you make another will, the first will you made is revoked.

• If you draw up a written document that is executed in accordance with the requirements for a will, your first will shall be revoked.

• If you burn, tear or destroy your will, it will no longer be considered valid. Or, if you have someone else destroy it, your will shall be revoked, provided this was done in your presence, with your consent, and with the intention of revoking your will.

WHAT HAPPENS IF I DIE WITHOUT LEAVING A WILL?

If you die without leaving a will, then your estate will be distributed in accordance with the law of succession.

This also happens:

• When the will is not valid because it was not made properly

• When a legal challenge to the validity of the will has been successful

• The law of succession also applies to assets which are not covered by a will such as where there is no residuary clause

If you are survived by:

• A spouse or civil partner but no children (or grandchildren): your spouse or civil partner gets the entire estate.

• A spouse or civil partner and children: your spouse/civil partner gets two-thirds of your estate and the remaining one-third is divided equally among your children. If one of your children has died, that share goes to his/her children.

• Children, but no spouse or civil partner: your estate is divided equally among your children (or their children).

• Parents, but no spouse, civil partner or children: your estate is divided equally between your parents or given entirely to one parent if only one is living.

• Brothers and sisters only: your estate is shared equally among them, with the children of a deceased brother or sister taking his/her share.

• Nieces and nephews only: your estate is divided equally among those surviving.

• Other relatives only: your estate is divided equally between the nearest equal relations.

• No relatives: your estate goes to the State.

CAN I GIVE MY POSSESSIONS AWAY BEFORE I DIE?

You can give your property away before you die, but you should consider:

• The rules on Capital Acquisition Tax (CAT) mean that the person you are giving your possessions to might have to pay tax. CAT may also be charged on an inheritance.

• If a court finds that you gave away property before you died with the intention of unfairly reducing the legal right share of a spouse, civil partner or the rights of any child, the person who received the inheritance could be made to pay it back to the estate.

COMMON PROBLEMS AND DISPUTES ABOUT WILLS

When you make your will, you should consider some common problems that result in a gift made in a will being invalid.

• The possession that you want to leave to someone may be lost or no longer exist at the time of your death.

• There is confusion about the identity of a beneficiary. For example, you leave a gift to your cousin, Jim, and you have cousins named Jim.

• If the gift is not clearly identified in your will or it does not conform to its description in the will.

• If you leave a gift to a person who is a witness to your will, that gift will be invalid.

JOINT BANK ACCOUNTS

If you have a joint bank account with your spouse, civil partner or child usually the surviving account holder will be fully entitled to the money in the account when you die.

DISPUTES ABOUT WILLS

Most wills are not disputed, but if there is a disagreement, it must be settled in court. The court will give effect to the testator’s wishes as expressed in the will if possible. Because wills can be disputed, it is important that you write your will in simple, straightforward language. Statements which could have more than one meaning should be avoided.

WHO CAN READ MY WILL AFTER I DIE?

After probate has been taken out on a person’s will, that will then becomes a public document and anyone can get a copy of the will and the grant of probate of these documents from the Probate Office or relevant District Probate Registry. Probate is the process of getting authorisation to represent you and carry out the wishes set out in your will.