As I made clear in the preceding articles on this subject, any adult person (that is, aged 18 and over for this purpose) or a serving member of H M Forces (even if under this age), being of sound mind, can make a valid Will.
Over the next few weeks I will supplement what I have said in previous weeks with some further thoughts on the important formalities of creating a valid Will. After all, a job worth doing is worth doing well. By which I mean that if you are going to go to the trouble of setting out in writing what you want to happen on your death then it is absolutely critical that you ensure that what you do is legally effective. I have drawn on our Techlink Professional library (www.techlink.co.uk) in putting these next few articles together.
Under English law an individual is, generally speaking, free to decide who should benefit from their estate on their death. This is subject to the provisions of the Inheritance (Provision for Family and Dependants) Act 1975 (IPFDA) which allows a spouse or a dependant to apply to the Court for reasonable financial provision where the deceased has not so provided under their Will. This can provide limited relief for a surviving spouse and others financially dependent on the deceased.
Until 1995, a co-habitee wishing to make a claim (under the IPFDA) needed to demonstrate not only that they were financially dependent upon the deceased but also to quantify the level of financial dependence. The Law Reform (Succession) Act 1995 allows a co-habitee, who has lived with the deceased prior to their death for at least two years, to apply for relief under the IPFDA in, generally speaking, the same way as a spouse, i.e. by removing the need to prove financial dependence but leaving the requirement to demonstrate the level of financial dependence.
Since 5 December 2005 registered civil partners have been treated in the same way as married individuals.
The freedom for a person to make unrestricted provisions in a Will is to be contrasted with the forced heirship provisions, such as those applying in Scotland (legitim and prior rights), and similar provisions applying commonly in other European countries.
The only assets that cannot be freely disposed of are those held jointly eg. in England assets held on a joint tenancy basis, when the asset will pass by survivorship to the surviving joint tenant. This will not be so when assets are held on a tenancy in common basis.
The formalities for making a valid Will are prescribed by the Wills Act 1837 as amended. As I mentioned in an earlier article, for a Will to be valid it must be in writing, it must state that it is a Will (or a codicil to a Will), it must be signed and dated and the testator (in the case of a male Will maker) and testatrix (in the case of a female Will maker) must sign it in the presence of two witnesses who must attest the Will in each other´s presence and in the testator´s presence.
A typical attestation clause could read:
“Signed by the [Testator] [Testatrix] on the ____ day of _____________ 19____
Signature of [Testator] [Testatrix] ______________________
Signed by the [Testator] [Testatrix] in our presence and then by us in [his] [her]
Witness 1 Witness 2
The important point to remember is that if a beneficiary under the Will acts as a witness to the Will they will not be able to benefit under the Will. It is therefore extremely important to remember that the Will beneficiaries should not act as witnesses. The same rule applies to spouses of beneficiaries.
Another point to remember is that unlike other legal documents, such as trust deeds which can only be legally prepared for engrossment for a fee by a practicing solicitor, there is no such requirement for Will drafting. As a result of this, Wills can be prepared by persons who are not legally qualified.
Tony Wickenden is joint managing director of Technical Connection
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