10 Common Mistakes When Drafting a Will
A well-drafted Will gives clarity, protects loved ones and helps ensure that your estate passes in the way you intend. Yet wills are also technical legal documents, and small mistakes can create uncertainty, delay, avoidable tax consequences or even disputes after death. For families, that can mean extra cost and stress at an already difficult time.
Below are ten of the most common mistakes people make when drafting or updating a Will — and why taking proper advice can make all the difference.
1. Not signing the Will correctly
One of the most serious mistakes is failing to execute the Will properly. In England and Wales, a Will must be signed by the person making it in the presence of two independent witnesses, who must also sign in that person’s presence. If the signing process is not carried out correctly, the Will may be invalid.
2. Using the wrong witnesses
Witnesses should be independent. A beneficiary, or the spouse or civil partner of a beneficiary, should not witness the Will. If they do, the gift to that beneficiary may fail, even if the rest of the Will remains valid. This can completely undermine what the person making the Will intended.
3. Failing to revoke earlier Wills
A new Will should usually make clear that all previous Wills and testamentary documents are revoked. Without a clear revocation clause, there can be confusion about whether an earlier Will, codicil or informal document still has effect. That uncertainty can lead to delay and, in some cases, litigation.
4. Forgetting what passes outside the Will
Not everything necessarily passes under a Will. Jointly owned property may pass automatically to the surviving owner, depending on how it is held. Pensions, life policies written in trust and some nominated benefits may also pass outside the estate. A Will should be prepared alongside a wider review of the person’s assets, ownership structures and nominations.
5. Being too vague about gifts
Ambiguous wording is a common source of disputes. Phrases such as “my jewellery”, “my personal possessions” or “to be divided fairly” may sound straightforward but can be interpreted differently by different people. Specific gifts should be described clearly, and beneficiaries should be identified accurately.
6. Leaving out a residuary clause
The residuary estate is everything left after debts, expenses, tax and specific gifts have been dealt with. If a Will does not say who should receive the residue, part of the estate may pass under the intestacy rules. This can produce an outcome that is very different from what was intended.
7. Not appointing appropriate executors
Executors are responsible for administering the estate, collecting assets, paying liabilities and distributing gifts. Choosing someone simply because they are a close relative is not always the best approach. Executors should be trustworthy, organised and capable of handling the role. It is also sensible to appoint substitute executors in case the first choice cannot act. Our clientsoften appoint our firm to act as an executor.
8. Failing to plan for children or vulnerable beneficiaries
For parents of children under 18, a Will can appoint guardians and set out how assets should be held for them. It can also include trust provisions for young, disabled or vulnerable beneficiaries. Without proper planning, the courts or intestacy rules may have a greater role than the family would have wanted.
9. Ignoring tax and estate planning
A Will is not just about who receives what; it can also affect the tax position of the estate. Inheritance tax, reliefs, exemptions, charitable gifts and business or agricultural assets all need careful thought. A poorly structured Will may miss opportunities to protect family wealth or reduce tax.
10. Not reviewing the Will after life changes
A Will should not be put in a drawer and forgotten. Marriage, civil partnership, divorce, separation, the birth of children or grandchildren, the death of a beneficiary, a house move, or a significant change in wealth can all affect whether a Will still operates as intended. Regular reviews help ensure the Will keeps pace with life.
Final thoughts
A Will is one of the most important documents a person will ever make. Getting it right can spare your loved ones uncertainty, expense and avoidable conflict — while giving you confidence that your wishes are clearly recorded and legally effective.
If you are making a Will for the first time, reviewing an existing Will, or dealing with more complex circumstances such as a blended family, overseas assets, business interests, vulnerable beneficiaries or inheritance tax concerns, it is worth taking advice before problems arise.
This article is intended as general information only and does not constitute legal advice. The law may differ outside England and Wales, and individual circumstances should always be considered.
Speak to us about your Will. Our team can help you put the right structure in place, avoid common pitfalls and ensure your Will reflects your wishes clearly and effectively. Please contact Anna Boucher at anna.boucher@theburnsidepartnership.com for more information.