Planning for the future by ensuring that your assets are distributed according to your wishes after your passing is a responsible and essential task. However, the process of making a legally binding will in the UK involves specific legal requirements. Some people may wonder whether a verbal or handwritten document can serve as a valid will. Understanding the legal standing of these forms of wills is crucial to avoid complications for your loved ones.
In England and Wales, the laws governing wills are stringent and clearly outlined in the Wills Act 1837. According to this legislation, for a will to be legally valid, it must meet the following requirements:
– The testator (the person making the will) must be at least 18 years old.
– The will must be in writing.
– The testator must intend for the document to serve as their will.
– The will must be signed by the testator or by someone else on their behalf, in their presence and under their direction.
– The signing of the will must occur in the presence of at least two independent witnesses, who must also sign the document in the testator’s presence.
These strict requirements mean that any document that does not adhere to these rules is likely to be deemed invalid by the courts.
A verbal will, also known as a nuncupative will, is one that is spoken rather than written. In some circumstances, an individual may express their final wishes verbally, particularly when they are in critical health or face unexpected death. However, in England and Wales, verbal wills are not recognised as legally valid.
Historically, nuncupative wills were permitted in very specific cases, such as for soldiers on active duty or sailors at sea, but reforms over the years have significantly restricted their validity. Today, verbal declarations of inheritance wishes, no matter how clearly articulated, do not carry legal weight. If a person has only stated their intentions rather than documenting them in a properly witnessed legal will, their estate will be distributed according to intestacy laws, potentially leading to unintended consequences.
A handwritten will, also referred to as a “holographic will” in some jurisdictions, is a will written entirely by the testator. Some people believe that a handwritten document specifying their wishes will be enough to ensure their estate is distributed according to their instructions.
In the UK, a handwritten will can be valid, provided that it meets all the necessary criteria set out in the Wills Act 1837. There are no specific rules requiring a will to be typed, meaning that a testator may write their will by hand, as long as it is signed and witnessed in accordance with the law.
Although a handwritten will is legally permissible, there are several potential issues that can arise:
– Ambiguity and Lack of Clarity – Without proper legal knowledge, a person may unintentionally use vague wording that can lead to disputes over the interpretation of their wishes.
– Risk of Invalidity – If the handwritten will does not include essential elements, such as a valid signature or appropriate witnesses, it may be deemed invalid.
– Challenges to Authenticity – Family members or other interested parties may argue that the will is forged or that the testator was unduly influenced when writing it.
– Difficulties in Locating the Will – A handwritten document can be easily lost or damaged, leading to difficulties in proving its existence after the testator’s death.
Given these risks, it is highly advisable to seek professional legal guidance when drafting a will, even if you intend to write it by hand.
If a verbal or improperly executed handwritten will is found to be invalid, the individual’s estate will be distributed according to the rules of intestacy. Under these rules, only specific relatives can inherit, and there is a strict order of succession. For instance, if the deceased was married or in a civil partnership, their partner would inherit a large portion of the estate, while unmarried partners, close friends, or charities would receive nothing unless explicitly stated in a legally valid will. This can lead to situations where the deceased’s wishes are not honoured, which can, in turn, cause distress and legal disputes among surviving relatives.
One of the rare exceptions to the rigid requirements for making a will applies to members of the armed forces. Under longstanding laws, soldiers in active service and sailors at sea may be permitted to make informal wills, even verbally. This is often referred to as a “privileged will.”
A privileged will does not have to meet all the usual formalities, such as requiring witnesses. However, the testator must still have testamentary capacity and must demonstrate a clear intention for their declaration to serve as a will. Despite this exception, military personnel are still advised to formalise their wishes through a written and properly executed will whenever possible.
Ensuring that a will is properly witnessed is a crucial step in the execution of a valid will. Witnesses help verify that the testator was of sound mind and not under any undue influence when making their will. The following rules apply to will witnesses:
– They must be at least 18 years old.
– They must not be beneficiaries of the will or married to a beneficiary. If a witness is named as a beneficiary, they forfeit any inheritance under the will.
– They must physically witness the signing of the will by the testator.
– The testator and both witnesses should be present together when signing the will.
Failure to adhere to these rules can result in an invalid will or contested probate, leading to unnecessary complications and delays.
Given the strict legal requirements, it is vital that any will complies with UK law to ensure it is recognised as valid. Here are some key steps to take when creating a will:
1. Seek Legal Advice – While DIY wills are possible, consulting a solicitor or professional will writer can help prevent common mistakes.
2. Clearly Express Your Wishes – Make sure your will explicitly states how you wish your estate to be distributed.
3. Include Executor Details – Name executors who will be responsible for administering your estate.
4. Ensure Proper Witnessing – Follow all the witnessing requirements to avoid any challenges to the will’s validity.
5. Store the Will Safely – Keep the original will in a secure location, such as with a solicitor or a professional will storage service.
If someone believes that a will is invalid or does not reflect the true intentions of the deceased, they may contest it through legal channels. Grounds for contesting a will include:
– Lack of Testamentary Capacity – If the testator did not have the mental capacity to understand the implications of making a will.
– Undue Influence – If the testator was coerced into making changes against their will.
– Forgery or Fraud – If someone has created or altered the will fraudulently.
– Failure to Meet Legal Formalities – If the will does not meet the legal requirements under the Wills Act 1837.
Contesting a will can be a complex and costly process, so legal advice is strongly recommended in such cases.
While handwritten wills can be valid under UK law if they comply with all formal requirements, verbal wills have no legal standing in most circumstances. Proper execution is vital to ensure that a will is recognised as legitimate and enforceable. To avoid complications for your loved ones and to ensure your wishes are carried out, it is always advisable to draft a legally sound will with the help of a professional. By taking these steps, you can have peace of mind knowing that your estate will be distributed according to your exact intentions.
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