4 Jan 2023
4 Jan 2023
It is important that you make a Will so that your assets and possessions will be distributed how you wish following your death, and that any further wishes can be adhered to. This may include:
Making a Will ensures your assets pass in accordance with your wishes, instead of the intestacy rules deciding for you, and can give you peace of mind.
Read more about why you should make a Will, and the different kinds of Wills available, here.
A Single Will is written by an individual and documents their wishes as to how they would like their estate to be dealt with following their death. Anybody can write a Single Will, even if you are in a relationship, and this might be the best option for you if you have your own desires that your partner doesn’t necessarily share.
We recommend that everyone should have a Will regardless of their circumstances, and an ideal time to think about this would be when you purchase a property, have children, or go through a marriage or a divorce.
However, difficulties can arise with Single Wills if you have joint assets with another person, which is why it is advisable to speak to a lawyer first about your options and let them guide you on which one would be the best for you.
Mutual Wills were usually put in place by couples, and commonly provide for each other on the first death and then state what is to happen on the second death (although it is possible for more than two people to enter into such arrangements).
Mutual Wills are no longer common and are now rare in practice. Such documents are legally binding on the survivor/s and as such if one individual were to pass away, the other/s cannot make changes to their Will. If they attempt to do so, the law of equity comes in to play and any changes made by a new Will are essentially invalid. There is no time limit on this rule, and as a result mutual Wills are forever legally binding on all parties.
Whilst this may sound like the ideal scenario to some couples, it is important to be aware of the issues that they can cause. For example:
One party may lose capacity and be unable to consent to any changes - in this case, an application may need to be made to the Court of Protection to deal with the necessary consent, which is time consuming and costly.
In practice, if an individual who entered into a mutual Will were to attempt to make changes via a later document the new Will would have no effect - their Executors will hold the estate on a “constructive trust” and will have to distribute the estate in accordance with the earlier mutual Will.
Whilst a mutual Will is technically revoked by a later marriage, this will not revoke the “constructive trust” which arises as mentioned above. The trust will survive that event and as such, the other party/parties will still be bound by the terms of the Will.
Mutual Wills can often lead to disputes and even litigation and, as a result, we do not recommend that you enter into them. There are better ways to maintain control following your death which can be achieved through Mirror Wills, and such options can be discussed with you at your Will meeting.
Mirror Wills are Wills put in place by two people (usually husband and wife or cohabiting partners) that contain almost identical provisions dealing with their joint estate on both the first and second death. Each individual has their own Will which can be changed at any time - unless they include trust provisions, for example a life interest trust commonly used to protect assets against care fees.
In some situations, Mirror Wills would not be suitable for those looking to make a Will. An example of this may be if one person has children from previous relationships, or if there is any concern that the survivor may change their Will and disinherit any chosen beneficiaries. As Mirror Wills are not legally binding it is essential that they are carefully drafted so as to avoid issues arising later.
It is therefore recommended that you take professional legal advice to ensure that your needs and wishes are met, and the best Will is drawn up for you and your loved ones.
A Statutory Will is a document put in place for a person who has lost capacity and involves an application to the Court of Protection. Statutory Wills are not signed by the individual but rather by a person on their behalf (such as their Attorney or Deputy).
The application process can be complex and takes a long time. You must submit various forms to the Court setting out the circumstances of the individual involved, including details of their finances, any former Wills, family arrangements and more. There is also a requirement to serve notice on certain interested parties and an assessment of capacity to be carried out by a professional such as a GP or Social Worker.
For this reason, it is advisable that you seek advice from a Wills, Trusts and Probate Lawyer who can help you with the process and ensure that the process proceeds as smoothly as possible.
We offer an initial Will meeting where we can discuss the best route for you to go down and how to create a Will that ensures your wishes are met.
