Although we all know we should have a Will, many of us do not. We are all going to “get around to it” but have yet to sit down and write one.
There are, however, lots of people who have written a Will (well done, good work!) some time ago but have not looked at it for many years (not so good). They lock it up with their important papers and never take it out again.
You may have a Will and think you are done, and that you have sorted your “just in case something happens” parts of your life out – but your Will may actually be invalid. Or it may be a partly invalid Will.
In some cases, your Will may be out of date as it has not included some important life events, such as marriage, having children, a new business or divorce. You may not have included dual or blended families, or perhaps you have not nominated a guardian or have nominated a guardian that is now not able to look after your children.
How do you avoid this? You need review your Will regularly and ensure that you are very clear in your Will terms. This will not only help make sure your Will is not declared fully or partly invalid but also to help to avoid anyone potentially contesting your Will.
When is a Will invalid?
Here are some tips to consider when you write, amend or revise your existing Will:
- Ensure the witnesses to your signature are not beneficiaries or related to any beneficiary. You are best to choose witnesses who are unrelated and have no possible relationship or claim to you or your property.
- If you rewrite your Will, make it clear that any former Will is revoked. Make specific reference to it including the date it was written and any others that may be in existence at any time.
- When you have a life event (divorce, children, marriage, acquire a business or other large asset) you need to revisit your Will. You can then decide if you need to amend it with a Codicil or rewrite it. This way it is always current and up-to-date.
- If you are including gifts to some of your children but not others, or if your gifts are not similar or equal in value (i.e. one child inherits your business when the others get small sums of money) you need to ensure you state very clearly why this is the case. If, for example, only one of your children has worked in your business and you wish to gift the business to them for this reason, make notes in your Will to explain this. It may help your Will being contested and ensure your wishes are followed. There is no obligation that you have to treat your adult children equally under your Will but if you do not it is a good idea to give clear reasons.
- Store your Will in a safe place and give a copy to each of your Executors. This reduces the chances of your Will being lost or not found.
An annual diary note is a great way to remember to think about your Will at least once each year and any changes that may have occurred during the past year that may affect your estate distribution. Try to make a review regular and avoid getting caught with an invalid Will.
It doesn’t take much to save your family a lot of potential grief in the future.