Common reasons why a Will fails and how to ensure your Will is well written
Writing a Will can be a stressful task that we tend to avoid or push to the bottom of the to-do list. Our Will states personal wishes as to how we’d like our estate to be distributed after we pass away. Once we have written our Wills we should be satisfied and fully confident that our estate will correctly be distributed according to our stated wishes.
However, there are reasons that we oversee or are not aware of when preparing and writing our Will that can cause it to fail. If a Will fails it means that it is not valid, and in effect, there is no Will – leaving our estate to be distributed under intestate laws. Sometimes only part of a Will fails, for example where back-up provisions have not been made for a situation where the main beneficiaries have all passed away.
Common problems you should be well informed of before preparing and writing your Will:
Different countries have different signing requirements to ensure that your Will is legally binding. You are the testator of your Will, and to validate your Will, you will need to sign it in the presence of witnesses or a notary public. As the name indicates, your witnesses must physically be present and watch you when you sign and date your Will, and they must then sign and date the Will in your presence – sounds simple, right? Unfortunately, many Wills fail because the testator and the witnesses signed with different dates.
Requirements for who you choose as a witness vary, depending on the country the Will covers. As a general rule of thumb, a witness should be over the age of 18 and sound of mind. A witness cannot benefit from the Will they are witnessing, so it would be wise to choose a witness who is not mentioned in the Will or even related to anyone mentioned in the Will.
Marriage revokes a Will automatically, so if you are writing your Will or have written a Will when single and you get married, this will revoke your Will and make it null and void.
If you are already engaged to be married, or if you are expecting or planning a proposal, you can write your Will in anticipation of the marriage, so that tying the knot does not revoke or change your Will. You must name your future spouse to be in the Will – so you cannot write a generic Will stating that it shall not be revoked if you ever decide to marry someone.
Whereas it is perfectly legal to write your own Will, no matter how simple you feel your estate is, writing your own Will can lead to tremendous probate issues, and your beneficiaries might have been better off if you had no Will at all.
Where young children are involved, or where there are assets or ties across borders, it is important to take advice from a professional, who can guide you and ensure that your Will is drafted to properly care for your loved ones.
Although a DIY Will is attractive to save on cost, it can be a risky approach and could leave your family with a financial and emotional upheave. Discussing your estate plan and wishes with professionals ensures that your legacy is preserved.
Only an original signed and dated Will is accepted by the probate courts. If you show up with a copy of a Will – even if it is a certified copy – chances are the courts will give you a timeframe to locate the original, and if this cannot be done within the deadline, the courts will rule that there is no Will, and proceed to apply intestate laws to your estate, meaning that your efforts were all for naught.
Any scribbles, markings or evidence of attachments, such as a paper clip mark or staple holes on your Will, can invalidate the entire Will. It is essential to keep your Will safe, clean and protected from any potential damage.
Location of your Will
The number one reason for a Will to fail is that no one can find it! If your Will is not found and presented to the probate courts within a relatively short timeframe, the courts will assume you did not leave one, and declare that you have died intestate – leaving it up to a predetermined set of laws to decide who gets to inherit your estate.
Don’t fall into this category by making sure that your estate planning documents are kept safe, but accessible.
Want to know where to store your Will? Read more…
Writing your Will is one of the most important things you can do, but it is important to keep in mind the formalities that you must comply with for your Will to be valid and go through probate successfully. Our team has the expertise and skills to assist you with writing your Wills and planning your estate.