Guide To Our Standard Will Template

Posted by Stephen on 8th September 2015

Guide to our Will template – Standard Version

Our Will template is for use by anyone, which generally means:

1. a married person with children (including a civil partnership with children) or an unmarried person with children who is living with their partner, who wishes to pass the majority of their assets to their spouse, civil partner or partner and then to their children in equal shares;

2. a married or unmarried person in a relationship, without children, who wishes to leave the majority of their assets to their spouse, civil partner or partner;

3. a single person with children who wishes to leave the majority of their assets to their children in equal shares; or

4. a single person without children who wishes to leave the majority of their assets to a charity or to named people.

As this will is designed to be suitable to all, it necessarily has more options for you to choose between. We have other Will templates that may be quicker for you to complete, as they are already more customised to your specific situation.

You can use this Will to replace your previous will (and any codicils). This Will incorporates various options, so it is appropriate whether or not:

1. you want to leave gifts to other named persons;

2. you want to leave legacies to charities;

3. you want to make directions about your funeral;

4. you want a natural burial; and

5. you have property abroad (it is best to make a foreign will in relation to just that property).

This Will template is not appropriate where you want inheritance tax planning advice and/or you have decided to create a trust via your will – you will need to take advice from a specialist solicitor on this. Legalo is unable to offer advice on trusts or tax planning and this is not a subject you should deal with on a DIY basis.

Jargon-buster

In this guide (and the Will template):

• “Executor” refers to the person or people you appoint to deal with your estate after your death and to do so in accordance with your will.

• “Estate” means your assets that you can leave by your will. Please note that assets passing by survivorship are not included in your estate for this purpose, such as an interest in your home if it is under a joint tenancy – it will pass to the other joint owner automatically and outside of your will, e.g. your spouse. A life insurance policy that is written in trust for your spouse is similarly not an asset you will leave by your will as the proceeds will be payable direct to your spouse on your death.

• “Residuary estate” means what is left of your estate after all the specific gifts stated in your will have been made and all inheritance tax, funeral and other expenses have been paid.

• “Testator” means the person making the will.

Clauses in this Will

Initial clause – You will need to insert your full name and home address here. If you have no property abroad, then please delete all of the remaining words in square brackets in the rest of this clause. If you do have property abroad, then:

(a) keep 1 of the 2 options in square brackets on lines 1 to 3 – the first option is where you don’t have any foreign wills dealing with that foreign property yet, but are going to set them up shortly (as we suggest); the second option is where you already have a foreign will dealing with that foreign property – fill in the names of the foreign country or countries; and

(b) keep the words in square brackets on line 4.

Ideally you should set up a separate will for each foreign country that just deals with the property in that country, i.e. a will that satisfies the requirements of that foreign country for it to be valid (e.g. how you sign it and have it witnessed). This Will template is not appropriate for use with that foreign property.

In many of the clauses in the template you need to decide whether the gift is made free from inheritance tax (which will then have to be paid out of your residuary estate) or subject to a fair proportion of such inheritance tax, so in each such clause where those options present themselves, keep the option you choose (you can choose some of one and some of the other).

Numbered clauses

1. My executors – You are better off appointing at least 2 executors in case one dies before you. If they do, you can appoint a new executor, by updating your will as a whole, by adding a codicil that just deals with this issue, or by using a back-up executor as provided by clause 1.2. In clause 1.1, fill in the full names and home addresses of the 2 executors. If one is your spouse, civil partner or partner, then keep the wording in the first set of square brackets and select the option that applies. If not, delete those words. In clause 1.2 if you are appointing your spouse, civil partner or partner as an executor and you want a back-up executor, in case they predecease you, then fill in this clause. If not delete it.

2. [Not] mutual/mirror wills – This clause is optional – if you are married, in a civil partnership or in an unmarried relationship, you may wish to make a will that has the main purpose of leaving all your assets or the majority of them to your spouse, civil partner or partner if they survive you if they are doing the same and leaving the majority of their assets to you. We call these “mutual or mirror wills”. If this is the case, then delete the second of the options in clause 2.1 and delete the word “Not” in the title of clause 2, and capitalise the “M” of the word “mutual” in the title – your spouse, civil partner or partner should put the same wording as this clause in their will.

If you are both making similar wills but not intending to treat them as “mutual or mirror wills” that you would not amend independently of each other, then delete the first of the options in clause 2.1.

If your spouse, civil partner or partner and you are not both making wills in a similar form now, then delete the whole clause. Also if you are not in a relationship, then delete the whole clause.

3. Funeral wishes – This clause is optional – keep it and complete it if you wish to express non-binding plans for your funeral. If not at this stage, then delete it. You can always use a separate “letter of wishes” to set out matters (or do so in more detail) at a later date.

4. Guardians – When making your Will if any of your children are aged under 18, then you should consider appointing guardians in case both you and your partner die before the youngest of your children reaches age 18. You can just appoint one guardian, but most people appoint two. Fill in their names and address(s). If all your children are adults by the date you make your will or you have no children, then delete the whole clause.

5. My specific legacies – This clause is for use if you wish to leave specific assets (not just cash sums – see clause 6 for this) to specific people. Fill it in and repeat sub-clause 5.1.1 as many times as necessary or delete any unnecessary ones. If you do not wish to leave any such legacies, delete the whole clause. If referring to an object, describe it in sufficient detail so it is clear to your executors which item you are referring to, so there can be no doubts or arguments later. You can use this to leave gifts to your children, if any, directly.

6. My pecuniary legacies – This clause is for use if you wish to leave specific cash sums to specific people. Fill it in and repeat sub-clause 6.1.1 as many times as necessary or delete any unnecessary ones. If you do not wish to leave any such legacies, delete the whole clause. You can use this to leave gifts to your children, if any, directly.

7. My gifts to charities – This clause is for use if you wish to leave specific cash sums to charities. Fill in clause 7.1 and repeat sub-clause 7.1.1 as many times as necessary or delete any unnecessary ones. Be careful when naming the charity to insert the name it is registered with and its registered charity number – if it changes its name later on, this is not a problem, as your executors will still be able to track it down by its charity number (which never changes). If you do not wish to leave any such legacies, delete the whole clause. Charities are quite often taken over or merge with others – clause 7.2 acts to preserve your gift if they do.

8. My personal chattels – This clause is optional and is more appropriate if you are not in a relationship. After any specific gifts under clause 5, the rest of your personal chattels can be allocated under this clause if you wish. If you are happy for them to be dealt with under your residuary estate, which may well be the case if you are in a relationship (see clause 11), then delete the whole of this clause. If you wish to keep this clause, then fill in clause 8.1.2: if you have no assets abroad, delete the words in square brackets at the end of clause 8.1.2; or if you have assets abroad, then select which of the 2 options applies in the last line of this clause. As noted above, ideally you should deal with assets abroad by way of a separate will for each country that applies (not using this template, as it is only intended to be compliant with English law).

9. My estate – This clause simply records that your estate is everything that you can leave by will, but the optional wording in square brackets at the end of clause 9.1.2 should be kept and completed if you have assets abroad that are being dealt with in a separate will, or deleted if this does not apply. See the note above about the definition of “estate” for an explanation of what is not included.

10. Management of my estate – This clause states that the general intention is that the executors are to sell any assets that are not cash and turn them into cash, so that the cash can be distributed in accordance with your will. This is the law unless all the beneficiaries agree otherwise. (NB If any beneficiary is under the age of 18 they do not have the power to consent, so you cannot obtain the consent of all beneficiaries – but see the notes on clause 15 below which is designed to fix this.)

11. My absolute residuary gifts – This clause deals with your “residuary estate” (as defined above). The clause provides for your residuary estate to pass to your spouse, civil partner or partner.  If he or she does not survive you, then it provides for one of three main options to follow. Choose which option suits you and delete the other 2 options. Fill in the names and other provisions as appropriate. If you are not in a relationship you can still use the initial words of clause 11.1 to pass your residuary estate to a named person if they survive you, and then use one of the options if they do not. Alternatively you may wish to delete the whole of the words “My Executors shall hold my residuary Estate for my [wife/husband/civil partner/partner], [NAME] if [he/she] shall survive me. In the event that [NAME] does not survive me”, and then put a capital “M” on the word “my” at the start of the option you choose.

Option 1 is suitable where you have children. In option 1 your residuary estate passes to your children. The reference to section 33 of the Wills Act 1837 means that where a child has died before the testator, the gift to them is not lost, but instead their share goes directly to their children or grandchildren, etc if they had any.

Options 2 or 3 may be used if you have no children.

12. Beneficiaries dying shortly after my death – This clause is optional. If you do not want it, delete the whole of it. Clause 12.1 provides that if a beneficiary (who is not one of your descendants – children, grandchildren, etc) dies shortly after you, then the gift to them fails – the money/value in that gift would instead fall into your residuary estate and go to the beneficiaries provided for in clause 11. Clause 12.2 then deals with gifts to your children (and their children, etc) and so on, so that this provision follows the rules in section 33 of the Wills Act 1837.  Clause 12.2 extends this rule to a death of a child during the period shortly after the testator’s death so that the gift to them is not so lost, but instead their share goes directly to their children and grandchildren, etc.

If you wish to keep clause 12.1 but you have no children, then delete clause 12.2 and the words “(other than a child or remoter descendant of the testator)” near the start of clause 12.1.

13. Power of investment – This clause removes the restrictions on executors investing part or all of the money in the estate that would otherwise apply and are generally seen as too restrictive.

14. Power to borrow – This clause permits the executors to borrow as necessary e.g. to raise money to pay inheritance tax in order to avoid interest charges or to raise money to repair the house if this is needed, for example, in order to preserve its value or get a better overall sale price (if it is being sold) for the benefit of the estate as a whole.

15. Power of appropriation – It may be the case that beneficiaries are interested in receiving actual assets rather than their cash value, e.g. shares in a company. This clause fixes the possible problem noted under clause 10 above: the executors can decide not to sell such an asset and can instead pass that asset to a beneficiary in satisfaction of the appropriate value of his or her interest.

16. Executor charging – This clause permits executors to charge appropriately for their services, particularly if they are professionals, e.g. a solicitor.

17. Executor’s protection – This clause gives some basic protection to the executors.

Final drafting note – Once you have chosen all the options and filled in all the details, remove any square brackets that might still exist in the document.

Testimonium and attestation

Signature clause – This clause makes the will valid and enforceable. If the will is signed or witnessed incorrectly it will be void and unenforceable. It is therefore critical that you follow these instructions to the letter.

The testator needs to sign the will here. It is a critical requirement that the testator signs only in the presence of 2 proper witnesses. A proper witness here means someone who is:

  • aged 18 or over;
  • not one of the beneficiaries; and
  • preferably not related to the testator by birth or marriage.

If a beneficiary under the will is a witness, then the gift(s) to him or her in the will are made void by his or her being a witness, so it is very important to avoid using a beneficiary as a witness for this reason.

Both of the witnesses must be present when testator’s signature is being witnessed and they must both see him or her signing it. The witnesses then sign and fill in their details.

Once the testator and the 2 witnesses have signed the will, it should be dated on the top of Page 1 and just above where the testator has signed it (with the date it was actually signed). The signed original will should then be kept somewhere safe and accessible – not in a bank safe deposit box (as they are not accessible without a court order on death).

Do not attach the Will by any means to other documents. The Probate Registry have particular problems with any marks on original Wills indicating that items might have been attached and then removed, e.g. by staples or paperclips, and explanations and evidence are then needed, which causes unnecessary complications, cost and uncertainty – in the worst case, it may invalidate your Will.

Also if the Will runs to more than one sheet of paper, be careful how you attach the sheets together – you can staple them once, but do not staple them, undo it (e.g. to photocopy it more easily) and then re-staple it: multiple staple marks also need to be explained to the Probate Registry.