Hey everyone, here’s some light reading for a Friday afternoon…
Though we may trivialise, let’s be honest here; there’s no right or wrong time to deal with the important questions, to confront the life (and death) admin, and to face up to the one big truth about the future…
Should you be getting your affairs in order, or you’re concerned about a family member or friend who hasn’t yet seen to theirs, then you’ve probably got some questions about the process behind what makes a legally binding Last Will and Testament.
We’re here to drill down into the specifics, and today, we’re considering the importance of having your Will up to date.
Put simply, the date – or lack of one – on a deceased person’s Will can have significant consequences for executors, beneficiaries, and other parties with interests in an estate. Although adding a date to a Will is not a legal requirement, it is advisable.
With the help of legal expert Jennifer McGuinness, a Senior Associate within the Will Disputes team at Myerson Solicitors, here are some frequently asked questions to help you understand why the date on a Will is so important.
IS A WILL VALID WITHOUT A DATE?
A Will remains valid even if there is no date applied to it. Without a date, however, there is likely to be difficulty in proving that the undated Will is the most recent Will made by the deceased. This can create uncertainty as to who the ultimate executors and beneficiaries are.
WHAT IF THE WILL HAS AN INCORRECT DATE OR TWO DIFFERENT DATES?
A Will that contains an incorrect date or two different dates does not become invalid automatically. The Probate Registry will, more than likely, demand evidence to confirm the date for when the Will was signed. They will also require evidence that the document is the final Will of the deceased when a probate application is made.
CAN A WILL BE CHALLENGED BASED ON THE DATE OF THE WILL?
An incorrect date, or lack of one, on a deceased person’s Will is not enough to challenge that Will’s validity. It can, however, give rise to disagreements over which is the deceased’s final version, particularly if there are two Wills that were made very close together. This can risk negatively impacting the ultimate beneficiaries or executors of the Will.
The date on a Will, if incorrect, can indicate other issues, for example:
· Fraud: if the date was added or had been changed by someone else at a later date.
· Lack of testamentary capacity: if the deceased did not have the capacity at the time that the Will was signed.
· Undue influence: if the deceased was being pressured into signing the Will at that date.
· Knowledge and approval: if the deceased had signed and dated the Will before the contents were properly explained to them.
HOW LONG IS A WILL VALID FOR?
Once it has been written, a Will lasts forever and doesn’t have any time restrictions, which means you do not have to write a new one every year. That said, ideally, you should regularly review and update your Will.
Circumstances and family dynamics are not always static, and regularly change, as do personal affections. These can have a significant effect on how a person would want to leave their estate. The lack of reviewing a Will regularly may result in unwanted outcomes for the estate.
CAN A SPOUSE OVERRULE A WILL?
It should be noted that marriage automatically revokes a Will. Should the testator (the person making the will) re-marry, for instance, any existing Wills are no longer valid. If a new Will was not drafted, then intestacy rules would apply, and the new spouse would become the substantial beneficiary.
As it stands, intestacy rules mean the spouse would attain the initial £270,000 of the estate alongside all personal possessions, whatever their value. The spouse would also receive 50% of whatever remains, and the other 50% is split between the surviving children (or their children if they have already died).
If an individual has a Will prior to being married, they should evaluate their Will in contemplation of their new marriage. It is generally recommended by legal experts that in such cases, the Will is reviewed just before the marriage instead of leaving it until after.
WHAT IF THE WILL IS NOT CORRECTLY SIGNED, DATED, AND WITNESSED?
For a Will to be valid, it must be in writing and signed by the testator (or by another person at the direction of the Will maker if they cannot sign).
There must be two independent witnesses to oversee the signature on the Will, and they must be present in the same room and at the same time. The witnesses should not be beneficiaries (which are the individuals who will receive money, assets, or anything else from the estate) or members of the family.
The witnesses must also sign in the sight and presence of the testator.
WHAT IF THERE IS CONCERN REGARDING THE VALIDITY OF A WILL?
Should you have any concerns regarding a Will’s validity as an executor, beneficiary, or as another interested party, or if you have concerns surrounding the effects of the Intestacy Rules, you can seek legal advice from a specialist contentious probate solicitor. They will be able to talk you through the issues and provide advice regarding the best available options.
WHY IS IT IMPORTANT TO HAVE AN UP TO DATE WILL?
Research that was carried out by Canada Life reported that fifty-nine per cent of people in the UK (around 31 million adults) do not have a Will that is in place to protect their family and assets.
Should an individual die without leaving a Will, their estate will be distributed in line with the intestacy rules. This can lead to potential animosity and legal disputes, and could also result in very distant and estranged family members deriving benefits instead of those closest to the deceased. Intestacy rules could also result in an estranged spouse being the substantial beneficiary, should the testator not have made an up-to-date will.
If you have any more questions surrounding the dating of a Will or would like to know more regarding the Intestacy Rules, you can get in touch with the Will Disputes Team at Myerson Solicitors.