Characteristics of a valid Will

It is important to make a Will to ensure that your estate is divided amongst your beneficiaries in accordance with your wishes. If you do not leave a Will the law decides who inherits the estate. This can result in a distribution of assets that would not have been in line with your wishes and can be especially problematic for cohabitees (a couple who live together but are not married and have not entered into a civil partnership).

HMRC’s internal manual lists the following characteristics of a valid Will:

  • must be in prescribed form that satisfies all the formalities;
  • operates only as declaration of intention and does not prevent a testator or testatrix from disposing during their lifetime of assets which may have been allocated to someone in the will;
  • takes effect only on death and until that time the beneficiaries have no interest in the assets;
  • may not only deal with dispositions of assets, for example, it may appoint a guardian of minors or give directions on burial or cremation arrangements;
  • can be revoked or altered at any time before the testator/testatrix dies; and
  • is ambulatory, that is to say it is capable of dealing with property acquired after it was made (provided the property is still owned by the testator at death).

It should be noted that even when a valid Will is in place, arguments between family members, beneficiaries or personal representatives can arise. Any disagreements must be sorted out before the affairs of the person who died can be settled. This can sometimes be so contentious that it has been left to the Courts to decide if a Will made by a deceased person was valid or invalid.

A Will can also be changed after death. This can be done by what is known as a Deed of Variation for up to two years from the date of death and is most often contemplated to reduce Inheritance Tax liability. A Deed of Variation can only be executed with the agreement of all the beneficiaries. It is more complicated if children are involved as they cannot themselves consent to changes.

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