Ten common mistakes in wills


15 August 2018

The biggest mistake you can make when it comes to wills is not having one! Maybe you haven’t got around to it, you don’t believe you have anything to leave or you assume your assets will just pass in a certain way. Whatever the reason for not having one, it is almost certainly better that you do.

If you do have a will you must make sure that it is well thought out, correctly drafted and still covers your wishes if it was prepared some time ago.

Mistakes in wills can render them invalid either wholly or in part, can also result in them being challenged, certain clauses being disregarded and/or your estate not passing as you intend.

Ten common mistakes

  1. Marriage – unless your will was validly drafted 'in expectation of marriage' it will be revoked by marriage.
  2. Divorce – your will will still be valid after a divorce but it will be read as if your former spouse died before you.
  3. Separation – if you include an unmarried partner in your will and subsequently separate, then your will, including any gift to that person, will remain valid.
  4. Unmarried partners, children and/or grandchildren – if you made a will and subsequently met a partner or had children or grandchildren then those persons will not benefit unless your will was validly drafted to include such persons within a 'class' of beneficiaries or is covered by a specific definition.
  5. Death of a beneficiary – depending on his/her relationship to you and how your will was drafted, that gift may fail completely or pass elsewhere.
  6. Change of assets – if you include a gift of a specific item and subsequently that item is sold, given away during your lifetime then, depending on how your will was drafted, that gift may fail completely. If you subsequently acquire other specific items, they will either fall into your residue or pass to a general 'chattels' beneficiary.
  7. Increase in the value of your estate – you should carry out an IHT planning exercise, particularly if your estate gets close to or exceeds the nil rate band, currently £325,000 (or the £2m mark for the residence nil rate band), as either your will may not be drafted in the most efficient way or you may wish to consider giving assets away in your lifetime.
  8. Improperly executed – if you do not follow certain legal formalities when signing your will, it will not be valid.
  9. No default beneficiaries - if all of your beneficiaries have died before you and no default beneficiaries are named then the intestacy rules will apply.
  10. Not having considered all relevant factors such as; which assets will pass outside of your will, how foreign and/or business assets will pass, whether to use trusts, the ages at which beneficiaries should inherit, who to appoint as guardians for your children; whether a claim may be able to be brought against your estate and many other factors which are often raised when meeting with a professional adviser.

We strongly recommend that you review your will at least every five years or after a major life event to ensure that it still reflects your wishes and is still valid.

If you would like to discuss wills in more detail please contact Natasha Senior or a member of the Estate Planning and Wills Team. Law covered as at August 2018.