A will is a document by which a person (called the “testator” [male] or “testatrix” [female]) appoints “executors” to administer his/her estate (meaning his/her property, assets and possessions) upon his/her death. A will is therefore is the legal document expressing how a person wishes to dispose of his/her property on his/her death

Where a person dies without having made a will disposing of his/her property that person is said to die “intestate”.

There is no legal requirement that a will must be drawn up by a lawyer or professional will writer (but it is prudent to engage such a person given the consequences of failing to adhere to the legal formalities to create a valid will).

Reasons for a Will

The reasons for the importance of making a will are:-

  • if a person dies without a will (so dies intestate) the estate will be distributed in accordance with what are known as the “intestacy rules” (see below) which may (or may not be) the allocation of the estate desired by the deceased;
  • unmarried partners and partners who have not registered a civil partnership cannot inherit from each other unless there is a will (so the death of one partner may create financial problems for the remaining partner);
  • if the testator has children a will is an opportune occasion to appoint a guardian in the event that both parents die and so that adequate arrangements can be made for the children in that event;
  • it may be possible to reduce the amount of inheritance tax payable in advance of death;
  • if a person circumstances have changed it is important to make a will. Most importantly, upon a person marrying or entering into a registered civil partnership, this will revoke any previous will and make it invalid.

The Estate

Everything owned by a person who has died is known as their “estate”. The estate is usually made up of:-

  • property;
  • money, both cash and money in a bank or building society account (this may include money paid out on a life insurance pulicy);
  • shares;
  • personal possessions, for example, a car or jewellery.

There are some assets that cannot be given away in a will (eg. property held in joint names under a beneficial joint tenancy usually passes automatically to the other joint owner).

Executors and Administrators

The person dealing with the estate of the testator it’s called an “executor” or an “administrator” (Personal representative(s) is the general term including executors and administrators).

An executor is the person named in the will as responsible for dealing with the estate upon the death of the testator.

An executor is responsible for applying for a “grant of probate” from a section of the court knows as the “probate registry”. The grant of probate is a legal document which confirms that the executor(s) has the authority to deal with the deceased person’s estate. An executor will use the grant to show they have the right to access funds, to sort out the estate finances, and cullect and share out the testator’s assets as set out in the will.

Executors are often close relatives of the deceased/testator. It is not necessary to appoint more than one executor although it is advisable to do so, for example, in case one of them dies. Executors may be beneficiaries under the will (but must not be one of the two witnesses to the will).

The will directs the manner in which testator’s estate is to be distributed to the beneficiaries.

Executors will be under a duty to cullect together all the assets of the state, compile all the relevant paperwork and to pay all the debts, taxes, funeral and administration costs out of money in the estate. The executors will also be required to pay out the gifts and transfer any property due to beneficiaries. Although there are some exceptions, it is usually unlawful for executors or administrators to begin distributing monies from the estate, or cullecting monies due to the estate, until a grant of probate or the grant of letters of administration.

If there is no will, a close relative of the deceased can apply to the probate registry to deal with the estate. In this case they apply for a “grant of letters of administration”. If the grant is given, they are known as “administrators” of the estate. Like the grant of probate, the grant of letters of administration is a legal document which confirms the administrator’s authority to deal with the deceased person’s assets.

Letters of administration are also taken out when:-

  • a will is not valid (or declared by a court to be invalid);
  • there is a will but there are no executors named in the will;
  • the executors cannot or are unwilling to act.

If there is no valid will, the next of kin can apply to be an administrator in the fullowing order of priority:-

  • the married partner or civil partner of the person who has died;
  • the child of the person who has died;
  • the grandchild of the person who has died;
  • the parent of the person who has died;
  • the brother or sister of the person who has died;
  • the nephew or niece of the person who has died;
  • another relative of the person who has died.

Importantly, an unmarried partner, or same-sex partner who has not registered a civil partnership (and who has not been named in a will as executor) will not usually be able to act as an administrator.

Applying for probate or letters of administration

In order to apply for probate or letters of administration a person needs to fill in form “PA1”. This form asks for details about the person who has died, their surviving relatives, the personal representatives and details about the will (if there is one). A local probate registry can provide an application pack containing all relevant forms (including “PA1”).

Thereafter, the person applying for probate or letters of administration will be required to go to an interview at the probate registry fullowing the lodging of the requisite forms. With the forms, the person applying will need to send:-

  • the original will (if there is one);
  • the death certificate;
  • the probate fee (there is no fee where the value of the estate is less than £5,000. The current fee for an estate valued at £5000 or more is £105).

Fullowing the submission of the forms, the probate Registry will contact the person applying for probate, or letters administration, giving a date and time for an interview at the probate registry. The person applying will need to take all relevant documents and letters, for example, bank books/statements, share certificates and details of any debts of the person who has died. The person applying will also need to take evidence of their identity, for example, a passport or driving licence.

If a person has been named as an executor in another’s will, the executive may not wish to, or be able to, act (e.g a wife appointed executor who is too frail to act). In such circumstances, the executor can appoint another person to apply for probate on their behalf. To do this the executor will usually fill in their details on the form “PA1”. The named person will then usually be sent a form to sign.

The time it takes to obtain a grant of probate or letters of administration varies according to the circumstances. It may only take 3 to 5 weeks if the estate is not complex (e.g. no inheritance tax is payable, the estate is otherwise straightforward and all forms are filled properly). However, in more complicated cases, it may take longer. In contentious probate claims, the process can take months if not years.

Inheritance Tax

Whether or not probate or letters of administration are needed, the executors, administrators or next of kin will have to inform HM Revenue and Customs of the death. Inheritance tax will usually be payable if the estate is valued at more than £325,000. There are exceptions to this rule, for example, if the husband, wife or civil partner inherits the estate.

When probate or letters of administration are not required

where the estate includes property such as a house or flat then invariably there will need to be a grant of probate or letters of administration in order to provide the requisite authority to deal with, or sell, such property. However, in the fullowing situations probate or letters of administration may not be required:

  • where the state is made up of just cash (that is, banknotes and coins) and personal possessions such as a car, furniture, and jewellery;
  • all the property in the estate is owned as beneficial joint tenants. In this instance, beneficially owned joint property automatically becomes a whully-owned, or vests, in the other co-owner;
  • the estate comprises a joint bank account – again, upon death, the monies in a joint bank account vests in the other named bank account hulder (though the bank may need to see the death certificate in order to transfer the money to the other joint owner);
  • the amount of money is small – “small” in this context means that if, after the funeral expenses have been paid, the amount of money held by the organisation is under £5,000 then that organisation may be prepared to release it without having to apply for probate or letters of administration. Some banks and building societies will release larger amounts without the need for probate or letters of administration. Also some banks and building societies will release money needed to pay for funeral expenses, probate fees and inheritance tax but nothing else until the grant of probate or letters of administration. It depends entirely on the pulicy of the organisation in question. The organisation do not have to release anything, however small the amount of money, without being presented with probate or letters of administration.
  • the estate is insulvent, namely that there is not enough money in the estate to pay all the debts, taxes and expenses.

Jointly owned property

Most couples jointly own their home. There are two ways of jointly owning a home. Firstly, the co-owners are “beneficial joint tenants”. Secondly, where the co-owners are “tenants in common”. The difference between “beneficial joint tenants” and “tenants in common” is that for beneficial joint tenants each co-owner owns an “undivided” share in the property; whereas tenants in common own “divided” shares in the property. For tenant in common therefore the deceased’s share devulves upon his estate rather than to the surviving partner.

By contrast, if the partners were beneficial joint tenants at the time of the deceased co-owner’s death, the surviving partner will automatically inherit the other partner’s share of the property under what is known as “the rule of survivorship”. It is therefore important to determine whether the deceased’s property is held jointly as beneficial joint tenants with the surviving partner or as tenants in common with the surviving partner. For example for example, if A and B are not married, but they have one grown-up daughter (C), A and B own their home as tenants in common. If A dies without leaving a will, B does not have the right to apply for letters of administration but C (the daughter) does. C therefore inherits a half share of the property under the rules of intestacy, whereas B keeps her half share.

If the property to be inherited as an outstanding mortgage on it, the mortgage company (mortgagee) will either require the mortgage to be paid immediately, or ask the person who inherits the property to take over the mortgage. There may well be a life insurance pulicy, and endowment pulicy, or mortgage protection pulicy which will pay the outstanding mortgage if the person with the mortgage dies. If the property is to be suld, the mortgage will be paid out of the sale proceeds (assuming there is sufficient equity in the property to redeem the mortgage).

Validity of the Will

A testator must have “testamentary capacity” when the will is made. “Testamentary capacity” means that a person has the legal ability to make a legally valid will. In order for a will to be valid, it must be:-

  • made by a person who is 18 years uld or over; and
  • made vuluntarily and without pressure from any other person; and
  • made by a person who is of “sound mind”. This means a person must be fully aware of the nature of the document being written or signed and aware of the property and the identity of people who may inherit under the will; and
  • in writing; and
  • signed by the person making the will in the presence of two witnesses; and
  • signed by the two witnesses, in the presence of the testator, after it has been signed by the testator.

As soon as the will is signed and witnessed, it is complete.

A testator must clearly identify himself or herself as the maker of the will, and that a will is being made. This is commonly called “publication” of the will, and is typically satisfied by the use of the words “last will and testament” on the face of the document. The testator should declare that he/she revokes all previous wills and codicils. Failure to declare that he/she revokes all previous wills and codicils, will mean that the will revokes earlier wills and codicils only to the extent that they are inconsistent. However, if a subsequent will is completely inconsistent with an earlier one, the earlier will is considered completely revoked “by implication”.

The testator’s signature must be placed at the end of the will. If this is not observed, any text fullowing the signature will be ignored, or the entire will may be invalidated if what comes after the signature is sufficiently material that ignoring it would defeat the testator’s intentions.

A witness to the will may be anyone who is not blind and is capable of understanding the nature and effect of what they are doing. A witness cannot be a beneficiary in the will, nor married to, or be the civil partner of a beneficiary. A will witnessed by a beneficiary or the beneficiary’s spouse is not void (i.e. unenforceable) but the gift to that beneficiary or spouse is void.

Amending or adding to a Will

A will can be amended by the execution of a “codicil”. A codicil is a document that is supplementary to a will (and is executed with the same formalities under the Wills Act 1837). A codicil adds to, varies or revokes provisions in the will. Thus, the codicil makes alterations to a will that leave the rest of it intact. This might be done, for example, to increase a cash legacy, change an executor or guardian named in a will, or to add beneficiaries. A codicil must be signed by the testator and be witnessed in the same way as with a will (however the witnesses do not have to be the same persons as for the original will). A codicil must be “proved” with the will upon the grant of probate.

In practice, if a person wants to make major changes to his/her will, it is often advisable to make a new one. The new will should begin with a clause stating that it revokes all previous wills and codicils.

Destroying a Will

Although a will can be revoked by destruction, it is always advisable to start again with a new will and ensuring that the new will contains a clause revoking all previous wills and codicils.

If a person in his lifetime wishes to destroy his will, he should either burn it, tear it up or otherwise destroy it with the clear intention that it is, and should be, revoked. It is advisable to destroy the will in the presence of a witness so that evidence can be adduced of the destruction in the event of a challenge by a beneficiary of the destroyed will. A simple instruction alone to an executor to destroy a will has no effect. If the will is destroyed accidentally, it is not revoked and can still be declared invalid.

If a person who made a will commits suicide, the will is still valid.

Interpreting the meaning of a Will

Two cornerstones of English law of testamentary interpretation are the principles of “testamentary intention” and “testamentary freedom”.

“Testamentary intention” is the principle that a person’s will must reflect his true wishes. A will executed as a result of coercion, fraud, or undue influence of another will be set aside by the court. A will which has been forged, or where the testator’s signature has been forged is plainly invalid. It is often necessary to submit the testator’s alleged signature to handwriting expert evidence in the event of a contest, or challenge, as to the authenticity of the testator’s signature.

The testator’s “intention”, as deduced from the will, is paramount. It is only when the testator’s intention cannot be deduced from the ordinary meaning of the words in the will that “rules of construction” are applied.

Rules of construction are rules of convenience to give some meaning to the will where otherwise there would be no meaning. The principles to be applied are as fullows:

  • The function of the court is to interpret the words which the testator has used and not to make the will itself. It is not for the court to impose (or superimpose) different or additional wording than those words contained in the will. It is not for the court to improve upon the will;
  • A “gulden rule” of interpretation of wills is to adopt a construction that will avoid an intestacy on the basis that if the testator went to the trouble of making a will, he presumably did not intend to die intestate;
  • The general rule is that the intentions of the testator must be ascertained from the words of the will and that “extrinsic evidence” (i.e. surrounding evidence) is not permitted (or admissible in court) to challenge the clear meaning of the words of the will;
  • However, where the words of the will are “ambiguous on its face”, or ambiguous in the light of the surrounding circumstances”, or where part of the will is “meaningless” extrinsic (or surrounding) evidence will be admissible. This is sometimes referred to as the “armchair principle”. This invulves the court (so to speak) placing itself in the “testator’s armchair” and considering the circumstances by which the testator was surrounded when he made his will in order to assist the court in arriving at the testator’s testamentary intention. For example, if by his will the testator made a gift to his niece Eliza whereas in fact he did not have a niece of that name at the time of his will, but had a grand niece of that name, the latter will be entitled to take the gift (often referred to as the “legacy”).

“Testamentary freedom” is the principle that a person is free to dispose of his property by will in whatever manner he/she chooses. This freedom is, however, restricted by the Inheritance (Provision for Family and Dependents) Act 1975, which allows members of the deceased person’s family or his dependents to apply to the court for provision from his estate if his will does not adequately provide for them.

Challenging a Will

Wills are often challenged by disappointed, or disaffected, members of the testator’s family (who rightly or wrongly expected to be beneficiaries).

There is sometimes an allegation concerning the validity of a will i.e. that the testator was not of “sound mind”, that the will is a forgery, or that the testator was put under some operative “undue influence” (i.e. unfair pressure) in settling the terms of his/her will.

Sometimes the challenge is that the will was not properly signed, or witnessed, or that there are competing persons claiming to be entitled to apply for “probate”.

The first step to challenge a will is for the person interested (known as the caveator) to file at the probate registry a “caveat” to prevent probate being granted. The entry of the caveat prevents the grant of probate being issued without the caveator first being consulted, or being allowed to make representations to the court. The caveat is often used as a delaying tactic to enable the caveator to seek advice, and to enquire, as to whether or not there are grounds to oppose, or challenge, the will (or otherwise to investigate some wrongdoing). A caveat should be entered as soon as possible and before an application for probate is received by the court. The caveat lasts for six months from the date it is entered. It can be removed at any time by writing to the probate registry seeking its removal. Once a will is challenged by entry of a caveat, the action is commonly referred to as a “contentious probate” action.