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.
The rich and the famous who died without a Will and what a mess it was!
What do Prince, Jimi Hendrix and Aretha Franklin have in common with people like you and me? More than you’d think! As many of us do, they neglected their estate plan and put off writing their Wills until it was too late.
You’d have thought these legendary stars, who generated millions in revenue, would have planned to safeguard their estates. Unfortunately, they never wrote a Will, died intestate and left their estates down at heel.
Here are a few famous artists who failed to plan:
- Jimi Hendrix (Nov 27, 1942 – Sep 18, 1970)
American rock guitarist, singer and songwriter, Jimi Hendrix died without a Will and his estate was battled over for more than 30 years. Following his father’s death, Hendrix’s siblings were left behind, still fighting over the large estate.
- Bob Marley (Feb 6, 1945 – May 11, 1981)
One of the pioneers of reggae, Jamaican singer and songwriter Bob Marley’s estate continues to bring in a significant revenue even though he passed away from cancer in 1981. Bob Marley had been advised to write a Will, but because of his Rastafarian faith prohibiting him from recognizing his mortality, he never did.
Dying intestate, he left behind decades of lawsuits and claimants of his estate, which was estimated to be worth about US$30 million when he died.
- Prince (June 7, 1958 – April 21, 2016)
Prince died without a Will and his estate remains unsettled, with none of his family able to receive a penny. Sadly, his estate has already, and still is benefitting others – Princes’ estate remains in the hands of state-appointed lawyers and executors who have already collected over US$5 million in fees and expenses!
- Aretha Louise Franklin (March 25, 1942 – Aug 16, 2018)
With great surprise “The Queen of Soul” American singer, songwriter, pianist and civil rights activist Aretha Franklin put off writing her Will until it was too late, leaving behind an estate worth US$80 million, and four sons and other family members guessing at her wishes. Her intentions could have been carried out quicker and with less fuss, had she written a Will.
- Salvatore Phillip “Sonny” Bono (Feb 16, 1935 – Jan 5, 1998)
Most well-known for his song I Got You Babe with his second wife Cher, songwriter, television star and politician Sonny Bono, too neglected to write a Will before passing away from a tragic skiing accident in 1988.
Not having a Will complicated the star’s estate, as at the time of his death he left behind a wife, Mary Bono, and three children. Complications surfaced when ex-wife, Cher, and a “love child” made claims to Sonny’s estate.
- Amy Winehouse (Sep 14, 1983 – July 23, 2011)
Amy Winehouse, English singer and songwriter, known for her unique eclectic mix of jazz, pop, soul and R&B, sadly passed away at the young age of 27. Initially it was claimed that Winehouse had, impressively for her young age, an up to date Will, however probate records state the star died intestate. Winehouse may not have had a Will, but what she did have was an estate worth US$6.7 million!
In accordance with intestate law, Winehouse’s estate was passed to her parents, leaving out ex-husband Fielder-Civil (who according to speculations Amy Winehouse still very much loved) as well as her older brother as beneficiaries. Dying without a valid Will, Amy Winehouse joined the list of many of the rich and the famous who neglected or procrastinated in planning their estate.
So why is it that these stars worth millions didn’t have a Will? One possibility is that – like many of us – they simply didn’t want to think about or face their mortality, but the simple truth is, we’ll never be certain!
It is, however, important to address the topic of death, and plan for the inevitable future, making sure that however little or much we have, our estates are distributed according to our wishes, and not decided by the laws of intestacy!
There is much we can learn from the famous – regardless of the value of your estate; whether you’re famous or not; dying without a Will leaves your loved ones with a lot more than just their grief to work through. The answer is quite simple –make sure you write a Will, and remember that writing a Will is not only for you but for the people you leave behind.
With assistance from our team, it does not have to be a complicated affair, and it will leave you and your loved ones with the peace of mind that everything and everyone is taken care of.