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.
Where to Store Your Estate Planning Documents – and where not to!
Have you created your Last Will & Testament? Yes, that’s great! Now, where to store it? Writing your Will is an important task but it’s not the last task on your “to-do” list before you can kick up your feet, sit back and relax.
Did you know? 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!
Below are some pointers to keep in mind when deciding where to keep your Will and other estate planning documents:
Let Your Executor Know
First and foremost, wherever you choose to keep your Will, the most important task is to alert your executors to the fact that you now have one, and where it can be found. Your executors only have a relatively short time to find and present your Will to the probate courts – the timeframe varies from country to country, but a good rule of thumb is six months. Rather than sending your executors on a wild goose chase, or having them tear your house apart in a desperate search, let them spend the time to mourn you, and then figure out the next steps (which we will discuss in another blog post). Don’t forget to keep your executors up to date on any changes, especially if you decide to move the documents to a new location.
It makes sense to keep your Will close, so you can pull it out from time to time, and check that you’re still happy with it. There are a few reasons why your home may not be the best or most secure place for your Will, however – you may be tempted to make amendments by scribbles in the margin – this could invalidate the entire Will. It could also be that children found it and decided that the textured paper it is printed on would make for a great colouring surface – again, this could invalidate the Will. Finally, and possibly most important, if you and your Will were to perish in a fire, you would have passed away intestate, and your efforts to set up the Will in the first place would have been for nothing.
A Safety Deposit Box
If your home is not the safest place to keep your Will, then surely a bank safety deposit box will be. Indeed, however a safety deposit box is too safe! If you pass away, your safety deposit box and its contents form part of your estate, and therefore access to it is frozen along with your other assets. To gain access to your safety deposit box, your executors will need to present the bank with the Grant of Probate, proving that the courts have accepted them as your executors. A Grant of Probate can only be issued by the probate courts upon presentation of your Will, which is locked inside the safety deposit box – a catch 22.
With Your Executor or Family
Instead of keeping your Will at home or in a safety deposit box, considering the risks, you may decide that the best way to make your Will accessible to your executors, is by leaving the Will in their care. This would certainly mean that the executors had immediate access to the Will – but what happens if your executor accidentally loses your Will, or worse – what if you have a fallout with the person holding your Will for you?
Another concern here is that, whereas it’s important that people know that you have a Will and where it’s kept, it is no-one’s business what the Will says until the day you pass away. If you have given your Will to someone to look after, they may sneak a peak and find that they don’t like what they read, or they could even attempt to contest a later Will based on the contents of the earlier Will that they had read.
With your Will Writer or Solicitor
Most Will writers and solicitors will offer to store the Wills you have drafted with them for free, in the anticipation that they will then be involved in the far more lucrative probate process. However, most firms offer only that – the safe-keeping of your Wills, with no additional service of informing and staying in touch with your executors, or even yourself. What’s more, the ‘safe-keeping’ may not be guaranteed – how many stories we have heard about firms closing down and a whole career’s worth of Wills lost, because the staff or successor didn’t have up to date contact details of the clients, or – as in a recent case – the Wills that were in the care of the firm had been moved to a forgotten basement, and were only discovered years later – after several clients’ estates had already been processed under intestate law.
With Phoenix Wills
As we do not directly engage in probate, we do not expect a future income from dealing with our clients’ estates, and therefore do not offer a free storage service.
Instead, we focus on keeping your documents accessible but safe. A nominal fee covers an annual check-in with you to ensure that your Wills are kept up to date. In addition, we send an initial information letter to your nominated executors, as well as an annual reminder to each of them, reminding them of the location of your Wills. This means, by the time you pass away, maybe 30 years after signing your Will, it would have been a maximum of a year since your executors had last heard from us, and instead of trying to remember what you told them about the location 30 years ago, they would (hopefully) immediately know where to turn to in order to retrieve your documents and get the probate process underway, ultimately ensuring that your assets were transferred to your beneficiaries as quickly and smoothly as possible.
Choose the storage option that seems the most suitable for you.
Hong Kong is a transient place, with many of us moving frequently within the city or across the region, during our time here. Ensuring that your Will is safe, rather than risking it being lost in yet another move, is crucial. The physical location of your Will is nowhere near as important as it being easily accessible in the event of your passing, so even if you leave Hong Kong to move to another posting or return home, your Will can be kept in that one safe location, as long as your executors are regularly reminded of the existence and location of your documents.
If you do choose to store your Will at home, may we suggest that you invest in a fire- and waterproof safe, to protect your Will in the case of fire or flooding – or even the water cannons putting out a fire. And remember that your executors will need to know how to open the safe!
Wills 101 written by Little Steps Asia
Little Steps Asia gives an introduction of what a Will is and the necessity of why it is we need to have one set up.
Why Little Steps loves it: “It’s important to sort out your Will for your family. Hong Kong based, Phoenix Wills can help you arrange it all. Wills, Enduring Powers of Attorney, Advance Medical Directives (Living Wills), Deeds of Appointment of Guardians, and they also offer safe storage of your Wills in their secure storage facilities…they make it easy, affordable, and offer top security too.”