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What goes in a Will?

Wills Factsheet No.5

 

Most Wills have a relatively standard layout made up of a number of separate, although inter-related, parts each of which has a specific function. Those sections usually to be found in a Will are:

Whose Will is it?

Normally the first part of a Will is the one which sets out whose Will it is and, to ensure that there is no room for doubt or ambiguity, where they live.

It does not matter if the person’s address changes – the Will does not become invalid. It is simply a way of showing that this is the Will of the person named who, at that date, was the one living at that particular address and not another person with a similar name. This might seem obvious, but if there are a number of Wills all stored together and more than one person has the same name then it may be necessary to identify which particular person with that name owns that particular Will.

Revocation clause

Most Wills continue by stating that they are the last Will of the person making it (known as either a “testator” if it is a man or, less commonly today, a “testatrix” if it is a woman) and that the Will is intended to revoke all previous Wills that the person has made. Sometimes they also use the word “testament” to describe the Will, but again this is becoming less common.

It is impotant to include the revocation clause otherwise to prevent confusion as to which Will applies and which set of instructions should, for example, deal with the same item of property or the residue under the Will.

However, care needs to be used in dealing with revocations. For example, if the testator has made a Will in another country to deal specifically with property in that country so as to comply with inheritance rules there, then there may not be an intention that that Will should be revoked by the Will being made in this country.

You should also be aware that if you have made any gifts in an earlier Will and you want those gifts to continue then you must repeat them in the current Will for those gifts to take effect.

Appointing executors

An “executor” (or, again less commonly, “executrix” to describe a female executor) is the person or persons appointed to deal with an estate when a person dies. It will be their job to work out what the person owns, gather all of the possessions in (not necessarily physically but knowing where they all are, which bank accounts contain money and so forth), pay off any debts and expenses surrounding the death, and then distribute what is left according to the instructions in the Will.

The appointment clause will normally name alternative executors in the event that the first named ones decide they are not able to deal with the estate (or “renounces probate” as it is sometimes called) or dies before the testator. There is nothing to prevent the executors from also being beneficiaries under the will and it is common for one of the executors at least to be a spouse of the testator.

However, the testator can also appoint a professional executor – that is to say a person who deals with estates as their job. Normally this will be a solicitor. Richard Nelson LLP, who have experience in dealing with probate and estates, will be happy to act as your executor, either alone or jointly with another person, if you wish. For more information go to Professional Executor Services.

It is a good idea to state the address of the executor at the date the Will was made to clearly identify them. It is also a good idea to check with them first to make sure that they are happy to be executor.

You might like to include a clause which provides that if your executors are not professional executors then they do not have any legal liability for any acts and omissions other than those which are fraudulent or grossly negligent. Non-professional executors will be unlikely to carry insurance against such acts and it might just make them more willing to take on the role knowing that one of the beneficiaries cannot bring proceedings against them.

For more information about the role that executors need to perform see the Factsheet The duties of executors.

Appointing trustees and guardians

If the Will contains a provision which has the effect of “delaying” the date upon which a person receives a gift under the Will, for example where the testator has young children who need to be looked after until they are 18, then a legal device known as a trust will be created.

Where there is a trust then there will need to be “trustees” to look after it. The Will can appoint either separate trustees to do this or it can simply give the role to the executors who will take on both roles. As with executors, the testator can appoint alternative trustees and can appoint a professional person or firm to act as trustee.

In addition to trustees, where there are young children, the Will can also appoint guardians to look after the children should both parents die before the children reach the age of 18. As with executors and trustees, alternative guardians can be appointed.

As a safeguard against fraud by the guardian, the Will can separate the role of guardian from that of trustee so that one person has the responsibility for bringing up the children whilst another has control of any money.

It is a good idea to state the address of the trustees and guardians at the date the Will was made to clearly identify them. It is also a good idea to check with them first to make sure that they are happy to be a trustee and especially important to check that they are happy to look after your children.

The duties and powers of the trustees will either be set out in the body of the Will or in a Schedule to it.

For more information about Guardians and Trustees see theFactsheet Guardians and Your Children.

Gifts

It is usual for the next clause in a Will to deal with gifts under the Will. These can be either gifts of specific items of property or gifts of sums of money. Often these are known as legacies.

Gifts can be given to specifically named people, for example "my son John Smith" or to groups of people, for example “my grandchildren living at the date of my death”.

Gifts can also be made subject to conditions. Thus a gift might be “to X on reaching the age of 18” or “to Y provided she survives me by 28 clear days”. The gift can even have a substitutional clause so that if the first beneficiary of the gift dies before the testator, the gift will not fail but be given to someone else – for example the children of the first named beneficiary.

A beneficiary does not have to be a person. It can also be a body such as a charity, university, school, or even a cats home.

For more information about Gifts see the Factsheet Legacies and Gifts.

Residue

Anything which has not been paid out by way of payment of debts and expenses of the estate or given to beneficiaries by way of a gift will form what is known as the testator’s “residuary estate”.

It is common for the residue to be left to one person or to a group of people as shall survive the testator by 28 days and in the event that they do not survive then to someone else. Thus, for example, where the testator has a spouse and children it may be left to the spouse if he or she survives the testator and then to those of the testator’s children as shall be living at the date of his or her death, and if more than one in equal shares.

Sometimes it might also provide that if any child shall die before the testator leaving children of their own (i.e. grandchildren of the testator) then they will take the share their parent would have taken.

For more information about residuary gifts see the Factsheet Legacies and Gifts.

If the Will does not contain substitutional instructions for the residue and the gift lapses then, even though there is a Will the residue will pass according to the rules of intestacy.

See the Factsheet Dying Without a Will for details of how the estate will pass under the Rules of Intestacy.

Funeral arrangements

Although it does not need to be included, the Will can contain provisions setting out whether the testator wants there to be a funeral, whether he or she wishes to be buried or cremated, whether they want organs to be donated for scientific research and so forth.

Unlike the rest of a Will, these are merely an expression of preference on the part of the testator and are not legally binding on the executors.

Many people prefer, rather than including the information in a public document (which is what a Will becomes after it has been admitted to probate), to put instructions such as this in a declaration of wishes or letter to the executors.

For more information about funeral arrangements please see theFactsheet entitled Funerals or for more information about Letters of Wishes see our Online Wills section where you can create a Letter of Wishes entirely online

Date and attestation

Wills normally end with a clause stating that the Will has been signed by the testator and the date upon which this occurred followed by a clause stating that it has been signed in the presence of two witnesses present at the same time and who have signed as witnesses in the presence of each other.

This may need to be amended if there are unusual circumstances to the way in which the document has been signed. For example, if the testator is blind there may need to be a clause stating that the Will had been read to the testator, or if the testator is unable to sign the document themselves that they have directed someone else to sign it on their behalf.

For more information about the legal requirements for signing and witnessing a Will go to the Factsheet entitled Signing and Witnessing Wills.