According to ‘The Law Society’, 2 in 5 people die without a will in the UK every year. While the loss of a loved one is a challenge already, the lack of a valid will can make an already upsetting time even more difficult. Thinking about your own death can be a slightly morbid thought, however, in a time of geopolitical tension and economic uncertainty thinking forward and protecting your assets, or ensuring your wishes are considered, is of paramount importance. The aim of this article is to highlight the key steps of constructing your will and ensuring its validity.
Legal Advice
We live in an age where google is at hand to help with any questions you may have and will-writing services are at the click of a button. Because of this access to information, many people opt to create their own will as anyone could create their own will. However, this may lead to complications down the line. All too often wills are found to be invalid as they have not followed the proper procedure when witnessing, amending the will or when choosing witnesses. Because of the delicate nature of validity in wills, it is best to seek the advice and aid of a solicitor to ensure the ‘will’ will be valid and follow your wishes by the law.
The Wills Act 1837
The Wills Act 1837 provides the framework for legal proceedings surrounding drafting a will. The legislation has stood largely unamended for just under two centuries, though changes were made with the women’s rights movement. The key elements of the Act show that for a will to be valid it must meet several requirements. These include but are not limited to:
- The testator must be at least 18 years old when signing the will, be composed in writing and signed by the person.
- The will must be signed voluntarily with the intent to create a legal testament
- The testator must have the mental capacity to understand what they are signing
- When signing the will, the signature must be witnessed by two independent witnesses
- The witnesses will also need to sign the document.
Witnesses
To be able to be a witness for the will, you cannot choose someone who has personal interest in the contents of the will. Therefore, when choosing a witness, you need to consider two independent witnesses; perhaps a neighbor or a friend. In accordance with the Wills Act 1837, there are also several requirements to ensure the witness will not invalidate the will. Witnesses:
- Must be 18 years or older
- Must not be relatives
- Must not be named as beneficiaries (or they will lose the right to inherit)
- Cannot be a spouse or a civil partnership
- Cannot be the spouse or civil partnership of a named beneficiary
- Must have the mental capacity to understand
Modern Challenges
The legal framework surrounding the process of making a will has remained relatively similar to the process created in the Wills Act 1837 and very few amendments have been made. Whilst the legal age of creating a will has dropped from 21 to 18 and married women are now allowed to create their own wills, there are some modern challenges that need to be considered to uphold the standard of wills that suits a modern society and contemporary challenges.
- Generative Legal Artificial Intelligence (AI)
A wave of generative legal AI has recently been developed, and whilst programs can be hugely beneficial to law firms to double check documents, get through work faster (reducing billable hours and charges to clients!) they may leave some errors in work if not checked over. For example, using a generative legal AI to help you generate a self-made will, this may reduce personal time however, it may also be invalid if not signed properly, amended correctly or correct legally.
- Electronic Wills
With the longstanding effects of COVID-19 still being felt globally, one of the most developed areas has been ‘cyberspace’. 39% of workers in the UK now work from home thus exemplifying our shift to the virtual world. However, it is legally required in England and Wales for the Will to be signed in person and witnessed by two witnesses. The Electronic Wills Act has been passed in America (July 2019) and it permits testators to create, sign, notarize and execute a valid will online. Witnesses are also permitted to witness signatures virtually.
One of the main concerns with online ‘E-wills’ is the trust element and the risk of financial abuse. Despite these, many are calling for the UK to progress and amend the law to allow for electronic wills that are representative of a digital population and workforce.
- Revocation by marriage
As per the Wills Act 1837, any will made prior to marriage will be revoked with the signing of a marriage certificate. Under section 20 of the Wills Act 1837, marriage, making a new will or burning an old will are the only ways of invalidating a previous will should you wish to have a new one. However, according to the Law Society, 42% of solicitors have agreed that the law should be changed to reflect modern wishes and to stop marriage from automatically revoking a will.
For help and guidance feel free to get in touch with Head of Private Client, John Paul Dennis on JPD@ProsperityLaw.com or give us a call on 0151 909 8657
This blog was written and prepared by Casey Williams, University of Liverpool Under-Graduate
