Procedures and steps taken for the valid execution of a will
In my capacity as a Paralegal, I have been instructed by Mr Mort, head of the department within Death & Co Solicitors to draft a letter to Mrs Sally Webster detailing the execution of her Will. This letter will fully explain the procedures undertaken and the steps she will need to follow to correctly execute a valid will.
I have also been instructed to draft a will for Mr Adam Smith using the appropriate clauses from their will precedents whilst giving consideration to the inclusion of the appropriate administrative provisions and trustee powers.
Drafted Letter to Mrs Sally Webster
Death & Co Solicitors
Dear Mrs S Webster
We write further to your attendance to Death & Co Solicitors on the 18th April 2011, regarding the execution of your Will. We thank you for your instructions and we hope to assist you with your matter.
This letter aims to explain to you in full the procedures that are needed to execute your Will and the correct steps that will be followed to ensure that your Will is executed correctly and the reasons why these procedures are necessary.
I understand that following the execution of your Will, you wish for it to be kept in safe custody here in our office at Death & Co Solicitors.
Procedures and steps taken for the Valid Execution of a Will
Under Succession Law a Will is a Legal Declaration of how you would like to dispose of your assets or property on your death, it must comply with the Wills Act 1837 and the Administration of Justice Act 1982. The will maker if Male is known as a Testator and Testatrix if female. A beneficiary from the will, named by the testator/testatrix will not benefit from the will until the will becomes valid only on the death of the testator/testatrix.
The will must comply with certain requirements in order for it to become valid. Without a valid will the deceased dies as an intestate and the intestacy rules apply, the assets are then distributed to the relatives of the deceased by personal representatives know as the administrators.
If you wish for specific items to be given as gifts to certain person(s) then it is important to state this in your Will.
It is important for you to declare who you wish to deal with your assets after your death. Therefore I suggest you specify who you would like to choose as an Executor(s).
Due to the fact a Will is not read until after death it is wise to state wishes such as burial arrangements to the executor before death.
It can also be specified in a will that a person does not inherit any property.
A beneficiary is a person who is entitled to benefit from a will or a trust. The beneficiary holds a beneficial interest in the property of which a will or a trustee holds.
An executor will be the person(s) you appoint in your Will to administer your estate. The appointment of an executor confers them the power to deal with the deceased's property in accordance with the Will made therefore not allowing beneficial ownership. An executor may also be a beneficiary under the Will. An Executor may be of a legal profession such as a solicitor, or you may wish to choose a spouse or friend.
There are two types of Intestacy:-
- Total Intestacy - When the deceased leaves no will at all, the will is invalid, or the will appoints executors but does not dispose of any property
- Partial Intestacy - This occurs when the will only deals with a part of the testators' property. Section 46 of the Administration of the Estates Act 1925 governs the manner in which the intestate estate is to be administered, the person inheriting and the amounts and proportions of the estate they receive. All this is in accordance with the importance of the familial relationships, the larger share of the estate would be given to the surviving spouse
An administrator is a person appointed by the court to collect and distribute a deceased person's estate when the deceased dies as an intestate. To be a valid administrator the court must grant a letter of administration. Sections 20 and 22 of the Non-Contentious Probate Rules 1987 lay down the administration order which entitles a person to a grant of representation.
Property can be interpreted in two ways:-
- Real Property - This includes all interests in land, excluding interests in money charged on land
- Personal Property - All property that does not comprise of land, e.g. Money, personal belongings
The requirements of a valid will
There are certain requirements that must be adhered to for a will to be valid. As aforementioned these requirements are stated in Section 9 of the Wills Act 1837 as amended by the Administration of Justice Act 1982.
A person must be over the age of eighteen, unless they are in the armed forces, however legal aid should be sought in these circumstances. A person must also be of sound mind. The provisions under Part 7 of the Mental Health Act 1983 states that the Court of Protection may approve the making of a codicil to a will or a will itself for a person who is not of sound mind. In Case Banks v Goodfellowitwas held that the delusions the testator was having had no impairment on his capability to dispose of his property accordingly.
In all cases relating to unsound mind, it would be wise to seek medical advice, it would also be wise to have the medical professional to act as a witness to the will therefore discarding any questions in regards to the validity of the will.
The Will must be made in writing (whether handwritten or printed) and as already aforementioned it must state an executor to carry out the wishes of the will to dispose of the property accordingly.
Section 9(a) of the Wills Act 1837 states that the will must be signed by you as the Testatrix, if you as the testatrix is unable to sign the will then it must be signed on your behalf in your presence by your direction, this known as an attestation clause.
This signature must be witnessed by at least two witnesses who will then sign the will in the presence of the testator however Section 9(d) of the Wills Act 1837 states that there is no need for the witnesses to sign in each other's presence.
The positioning of your signature should be placed at the end of the last word in the will. It must be that the preparation of the will and its signature is all part of one doing. Case Harris (Deceased) Reshows how a signature at the top of the page before the list of dispositions questioned the intentions of the testatrix's will.
A beneficiary or a spouse of a beneficiary may not sign the will
The will must be executed without any undue influences, and the intention of the will is solely yours as the testatrix.
It would be advised for you to list all properties entitled to you in the foreseeable future. All debts including mortgage, loans etc should be deducted which will give you a clear amount of how much will be left in your will.
A list should also be made to all persons that you wish as beneficiaries
Your will must be reviewed on a regular basis, at least every three to four years this ensures that your wishes reflect your current circumstances and needs.
Once the will is drafted it is advised to not alter or change the wording on the will, however as already aforementioned you have requested that your will be kept with us here in our office for safekeeping as storage number 1234.
We would advise that you inform the executors and/or family members as to the location of the will. Neither the Executors nor the family members need to be told the contents of the same unless you wish to inform them.
If you wish to discuss your will at any time please do not hesitate to contact us. In particular we would advise that you contact us to discuss the position in the event of any of the following:-
- You marry or divorce
- You or any person in the will changes their name
- If a beneficiary passes away
- If one or more of the Executors passes away or is unable to act as an Executor for any reason
- If your financial position changes
If you wish to amend or revoke your will at any time please contact us in order that the proper formalities may be observed. If this will is not properly amended or revoked then your wishes may not be as effective and may lead to complications in the estate.
If you have any queries in relation to any of the above matters please do not hesitate to contact us further. Thank you for your kind instruction.
With our good wishes
Probate Department, Death & Co Solicitors
The Will of Mr Adam Smith
THIS IS THE LAST WILL AND TESTAMENTof me ADAM SMITH of 15 Institute Row Barrowford in the county of Lancashire
- HERBY REVOKE all former wills and testamentary dispositions made by me and DECLARE this to be my last will testament
- APPOINT my Sons Mark Smith of 1 Cowbridge Road Fence and Michael Smith of 10 Cardiff Road Higher Wheelton to be the Executors and Trustees hereof
- IN THIS Will the expression ‘my Trustees' shall where the context permits mean its trustees for the time being whether they are original additional or substituted
- APPOINT the said Mark Smith and Michael Smith to be the guardians of my child Susan Smith after the death of my wife upon attaining the age of 18
- GIVE DEVISE AND BEQUEATH all my real and personal estate of whatsoever nature and wheresoever situate (out of which shall be paid my funeral and testamentary expenses my debts (and legacies) and all Inheritance Tax payable on or by reason of my death in respect of my estate):
- To my said wife if she shall survive me for the period of twenty one days
- If my said wife shall not survive me for that period or the gift should otherwise fail then to my Executors and Trustees
- Upon trust as to such estate (which together with the property representing it for the time being is referred to in this Will as ‘the trust fund') to sell it or (if they see fit and without being liable for loss) to retain it in the state in which it is at the time of my death and
- To hold the Trust Fund upon trust absolutely for such of my children living at my death as shall reach the age of eighteen years and if more than one equal in shares But if any child of mine shall die (whether in my lifetime or after my death) before attaining a vested interest but leaving a child or children alive at or born after my own death who shall reach the age of eighteen years then such child or children shall take absolutely and if more than one in equal shares so much of the Trust Fund as that child of mine would have taken had such child lived to attain a vested interest
- GIVE to my said son Mark my golf clubs and collection of golf memorabilia
- GIVE the following legacies free of inheritance tax
- to my said son Michael the sum of ten thousand pounds (£10,000)
- to my said daughter Susan the sum of twenty five thousand pounds (£25,000)
- to my grandchildren the sum of five thousand pounds (£5,000)
- I GIVE to my said son Michael my gold rolex
- I HERBY wish upon my death to be buried in the cemetery of All Saints Church Barrowfield in the county of Lancashire
AS WITNESS my hand this nineteenth day of April Two thousand and eleven
SIGNED by the above named testator ADAM SMITH in our presence and attested by us in the presence of him and each other