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What actually makes a 'good' or 'proper' will

Enoch Evans LLP

What actually makes a ‘good’ or ‘proper’ Will that does what you want it to do? Is legal terminology necessary?

Imagine you are writing your own Will.

You say: "I give my personal effects to my brother."

Imagine now a solicitor writing the same Will, which reads "I give free of taxes to my brother absolutely all my person chattels as defined by s55(1)(x) Administration of Estates Act 1925 as amended by s.3 Inheritance and Trustees' Powers Act 2014."

Do both not do essentially the same thing, regardless of legal terminology and statutory references? Not necessarily!

What do you class as "personal effects"? jewelry, vehicles, books or perhaps in this day and age digital assets?

Whilst personal definitions of this nature are influenced by, say, language, locality, traditions and social movements, legal definitions can be very specific.

Nobody wants a gift in their Will, or even the whole Will, to fail for uncertainty or take effect in a different way to what was intended.

Simplicity in wording should be sought when drafting a Will, but it does not necessarily equal legal clarity and can result in ambiguity.

How a specific clause, or in some instances the whole Will is interpreted can be altered by the words used.

Often legal terminology can be vital in establishing clear meaning if, heaven forbid, arguments break out that result in a Will being contested.

Let me be clear: a Will does not have to be drawn by a solicitor to be a valid and legally-effective document.

A Will is valid if it complies with the legal formalities set out in the Wills Act 1837.

However I would always recommend it to be advisable to obtain legal assistance when drawing up a Will. In most cases, legal language must be worded in a precise manner to ensure that it will have the desired effect.

The shortest known litigated Will was considered in the case of Thorn v Dickens [1906].

The Will in question, which was correctly executed, simply read "all to mother" but the testator’s mother was dead when he made the will.

Extrinsic evidence of the testator’s circumstances was admitted to show that he was in the habit of calling his wife “mother”.

A court will not lightly try to infer what a person might have meant by their Will, as this would risk undermining the law governing this area, however in this case the Court did in fact agree that the testator was referring to the Mother of his children.

The testator may have thought at the time that he was being clear and simple in expressing his wishes; however, this resulted in costs being incurred by the Court in determining what was meant by the Will and how the testator’s Estate should devolve.

Whilst this may be an unusual case, it illustrates in some way how things can easily go wrong.

Additionally, it is also worth bearing in mind that whilst there is no obligation to obtain legal advice when preparing your Will, a further advantage of doing so is that your solicitor should be able to provide you with bespoke advice unique to your own circumstances.

This should normally include advising upon the most tax efficient way to pass your assets down the generations and where appropriate how to best protect your assets from any potential third party claims, either arising now or in the future.

By obtaining the appropriate legal advice this should ensure that your Will does what you intended and protects your assets for your loved ones as best as possible.

The expert lawyers in the Wills, Tax and Probate team at Enoch Evans LLP have a wealth of experience in advising upon and drafting Wills.

The team whom are based across the firm’s Sutton Coldfield and Walsall offices are also experts in providing bespoke Estate planning advice upon how best to reduce the Inheritance Tax that will be due on death.

The Department is accredited by the Law Society with membership of its elite Wills and Inheritance Quality Scheme (‘WIQS’).