Will Writing: Avoid These Common Mistakes

We’ve now reached the end of our four-part series on Will writing. Under the expert guidance of Nosheen Bukhari, Wills & Probate Director at Manak Solicitors, we’ve covered the ‘what’, ‘why’ and ‘how’ of Will writing. From getting the paperwork together for your first solicitors meeting right through to executing a Will after death.

BUT what can go wrong?

If a Will is not done properly, it can cause expensive and exhausting court battles as well as anguish and upset for loved ones left behind.

The very purpose of a Will is to ensure your legacy is distributed according to your wishes and gives you the peace of mind that your loved ones will be provided for – would you risk all your forward-planning being undone?

In our final piece, Nosh guides us through some of the most common pitfalls so you can take extra care to avoid them.

Troubleshooting: What can go wrong with your… Will?

Contesting a Will

Putting a Will in place should give you peace of mind that you have provided for your loved ones after your death. However, your Will can be contested.

This is where the importance of a solicitor drafted Will comes into play. The most contested Wills are homemade Wills, followed by Wills drafted by unregulated Will writers that often like to pop up on your nearest high street.

Here are 5 of the most reasons your Will could be contested:

1] It has been drafted incorrectly

2] It has not been properly signed or witnessed

Two witnesses must be physically present at the time of signing the will, and they must be UK citizens, 18 and over and not named as beneficiaries in the Will or are married to someone who is.

3] The Will is out of date and has not been updated since any major life events, such as a marriage or divorce

4] Making amendments after the Will has been signed

To make official changes to your Will you need a codicil, which is a testamentary or supplementary document. It needs to be signed and witnessed the same as a Will. However, it is usually easier to just create a new Will altogether.

5] Failing to appoint an executor or appointing an inappropriate executor

Learn more about the role of an executor here.

Who can contest a Will?

Theoretically, anyone can contest a Will, even a neighbour! It’s important that your solicitor keeps a detailed attendance note of their meeting with you to show that you were not coerced into drafting a Will, that you had mental capacity and you’ve made reasonable provisions for your family members.

Contesting a Will can be costly as it’s dragged through the courts and may delay the administration of a deceased’s estate for years! This means that the loved ones you tried to make provisions for cannot benefit from your estate and your assets are left in limbo until the matter is sorted.

What happens if you do not have a valid Will in place on the day of your passing or your Will is invalidated?

In both circumstances, intestacy rules will come into place. You may hear this referred to as ‘dying intestate’.

Many people wrongly assume that everything will automatically pass to the spouse – it doesn’t and you may end up with a hefty tax bill. In many cases, the rules of intestacy do not match with an individual’s wishes.

Nosh sees this more now than ever, with the decline in the traditional nuclear family set up. In this modern day people may have 2^nd or 3^rd marriages in their lifetime, may choose to co-habit without ever being wed, there’s an increase in civil partnerships and same-sex marriages and blended families that include step-siblings, half-siblings etc.

It’s best not to assume who has the ‘right’ to inheritance or and ensure you speak to your solicitor to protect your Will as much as you can from costly and timely litigation.

Have a read of Manak’s blog ‘What Happens If You Die Without A Will’ which covers the rules of intestacy in more depth.

Did you know that there’s over a billion pounds worth of inheritance which the government is holding onto in unclaimed inheritance?

Troubleshooting: What can go wrong with your… Lasting Power of Attorney (LPA)?

Created under the Mental Capacity Act 2005, an LPA is a legal document that allows you to choose people that you trust to make decisions about your finances and your health and welfare on your behalf at a time in the future when you’re unable to make those decisions yourself.

Unfortunately, there are opportunists who will endeavour to take advantage by targeting vulnerable people due to the power that an LPA gives to attorneys. If you suspect an attorney is committing financial fraud, this can be reported to the police.

It’s important to ensure that an LPA isn’t being misused and that no one is trying to convince you to appoint them as your attorneys.

Here are a couple of ways you can protect yourself:

Appoint attorneys you trust

Make sure to appoint attorneys that you trust to deal with your finances and your health. If there’s no one that you’d wish to deal with your finances, then you can appoint professional attorneys (such as your solicitor) to act in the event that you lose mental capacity.

The Office of the Public Guardian (OPG) will conduct searches of their own to ensure that your attorneys are suitable people and have not been declared bankrupt but it’s also important to protect yourself.

Appoint multiple attorneys

Another method to deter abuse of power by attorneys is by appointing more than one attorney.

This means your other attorneys can be involved in decisions and will be ‘kept in the loop’ of what is happening with your finances or personal welfare and will be able to report any abuse of power by a fellow attorney.

Other factors to consider

Although an LPA is a very powerful document, there are certain clauses that need to be added in to ensure that your attorneys can fully use it. Additional clauses could be included in respect of debts, investments, discretionary management schemes as well as access to your medical records.

Your attorneys may find difficulty in accessing documents or dealing with third parties such as the local council if your LPA documents do not specify that you’ve allowed them to do so.

When drafting your LPAs with your solicitor, ensure that all aspects are covered and clauses are added into your LPA that ensure your attorneys can help with all areas, without difficulty, if you have lost mental capacity.

Our previous blog covers what you need to know about LPAs – you can read it here.

Jargon-busting – navigating the legal lingo

Mental Capacity: the ability to make specific decisions at the time that it needs to be

made.

Intestacy: a person who has died without a valid Will in place.

LPA: Lasting Power of Attorney

OPG: The Office of the Public Guardian

Attorney: the person given the power to make decisions.

Attendance note: a contemporaneous record of a meeting or conversation.

The complete Will Writing series with Manak Solicitors

If you missed our previous instalments, we’ve laid them out here for you:

PART ONE – Will Writing: Back To Basics

The first of a 4-part series on Will writing. Nosh from Manak Solicitors in Sevenoaks takes us back to basics, covering:
What is a Will?

7 reasons why you should have a Will
Using a solicitor Vs. Making a homemade Will – does it make a difference?
Checklist: What you need to get started

Will Writing: Back To Basics

PART TWO – Will Writing: What To Do When You Lose A Loved One

Manak Solicitors share with us the actions you need to take when executing a Will, from registering the death to instructing a solicitor.

Will Writing: What To Do When You Lose A Loved One

PART THREE – Will Writing: Lasting Power Of Attorney (LPA) In The Will Process

An LPA is a vital component within the process leading up to one’s passing, it has an intersecting role within the broader framework of Will writing.

Will Writing: Lasting Power of Attorney (LPA) in the Will process

Thank you to Nosheen, Wills & Probate Director at Manak Solicitors

As we wrap up this informative four-part series, we – the My Sevenoaks Community team – would like to say a huge thank you to Nosh. A labour of love, Nosh kindly gave us much of her time – through meetings and endless emails and phone calls – to bring this together in hopes to help people take that all important next step.

We’ve certainly learnt a thing or two along the way! Such a personal and entirely bespoke service, there’s still much we haven’t been able to get into. If you’re ready to set the wheels in motion with your own Will, speak to Nosh.

A little bit on Nosh…

With 15+ years of legal experience in the bag, there isn’t much that Nosh hasn’t seen!

Wills & Probate Director at Manak Solicitors, Nosh is also a Dementia Champion (10 years and counting!) and a member of Lifetime Lawyers (formerly Solicitors for the Elderly).

Nosh proudly refers to herself as an ‘elderly person solicitor’ because she feels so passionately about serving those who can, unfortunately, often find themselves in a vulnerable position. That means no confusing or intimidating legal speak, just clear and concise communication and, above all else, solutions that will always have her client’s best intentions at their core. Nosh has a real knack for turning complex processes into easy-to-understand actions and instructions.