The origins of the well-known phrase “where there’s a Will there’s a way” dates back to the 1620’s where it was first recorded in the anthology of proverbs by George Herbert entitled “Jacula Prudentum”. This is the same publication which also gave us the classics about leading a horse to water and all that glitters not being gold. The phrase, as we know it today, however, did not fully evolve until the 1820’s – and some 17 years later the Wills Act 1837 first became law; brought in to set out the rules for the creation and validity of wills in England and Wales. Whilst there have been a few tweaks in the past 188 years, the Act remains remarkably unchanged – and it is still the governing legislation relating to Wills today. Despite its age, there are a number of issues this legislation can still have for those who have a Will in place, and, in this article, we will outline some of the lesser-known legislative provisions which can have a significant impact on the validity of a Will.
How old do you have to be to make a valid Will?
Unless you are a Merchant Seaman or are a member of HM Forces engaged in actual military service, then you are unable to make a valid Will unless you are 18 years old, even if all the other formalities have been properly followed. In sad situations where a minor passes away with assets, these will pass to their closest relative under the Intestacy Rules which will commonly be a parent, grandparent or sibling.
Witnesses and Wills
One of the conditions for a Will being valid is that the person making the Will (also known as the Testator) has to sign or mark the Will in the presence of two witnesses who must also sign the Will. However, where one of those witnesses is either a beneficiary named under the Will or is the spouse or civil partner of a beneficiary named under the Will, then the gift to that beneficiary automatically fails – so the beneficiary would receive nothing.
As part of our Wills service, DMH Stallard offers the option for clients to sign their Wills at one of the firm’s offices where we can supply two independent witnesses to prevent this from happening.
Marriage/Civil Partnerships and Wills
If you have a valid Will, then subsequently enter into a Civil Partnership or a marriage this could then void the whole of your Will – meaning your estate would then pass under the statutory Intestacy Rules, unless you make another Will. The only way to prevent this from happening would be to include a clause in your Will which states that in the event of your marriage or civil partnership to a named individual that your Will should remain valid. This is commonly known as an expectation of marriage clause. It would mean that your Will remains valid regardless of whether or not you marry or enter into a civil partnership with the person named in your Will – unless you marry or enter into a civil partnership with someone else, in which case your Will would then become invalid!
Divorce/Dissolution and Wills
If you have a valid Will whilst you are married or in a civil partnership and then subsequently divorce or the civil partnership is dissolved, then it is treated under the Wills Act 1837 as if your ex-partner had died as at the date of the divorce or dissolution. It means if your ex-partner is named as an executor then they would not be able to take on that role. Similarly, if you have named them as a beneficiary then the gift to them under the Will shall also fail – even if you would still want your ex-partner to inherit or be an executor. In these circumstances, a new Will would need to be drawn up to include your ex-partner within it once the divorce or dissolution has been finalised.
Understandably, not all relationships end amicably, and it is always advisable for anyone who is going through divorce or dissolution proceedings to check the position with regards to their Wills to make sure their chosen beneficiaries will inherit their estate.
Validity of a Will – how we can help?
It is always best to seek professional advice in relation to making a Will. Steer clear of ‘off the shelf’ Wills which may have a greater chance of encountering validity issues when it matters most. A Will is an important document – it is the mechanism by which your wishes are communicated regarding what happens to your assets and your estate when you are no longer here, so it is imperative that it is done properly.
DMH Stallard can assist on all aspects of future planning. If you would like to discuss making a Will or would like further information regarding the validity of an existing Will, please get in touch with one of our expert private client solicitors today by email or call +44 (0)3333 231 580.
