Study Notes · 65 sections
Drafting a will is a core skill for private client solicitors. A well-drafted will clearly expresses your client's wishes, minimises the risk of disputes, and provides peace of mind. Poor drafting can lead to ambiguity, litigation, and the testator's intentions not being carried out.
Most will disputes arise from poor drafting rather than validity issues. Take time to understand your client's full circumstances, family situation, and assets. Clear language and proper execution prevent costly disputes later.
A will typically contains: an opening clause appointing executors, a revocation clause, funeral wishes, specific gifts, pecuniary legacies, the residuary gift, and an attestation clause. The structure follows a logical order that ensures all key matters are addressed.
The opening clause names the executors who will administer the estate. This clause is crucial as executors have significant responsibilities. Consider naming substitute executors in case your first choice cannot or will not act.
The revocation clause states that this will revokes all previous wills and codicils. This ensures there is no confusion about which document represents the testator's current intentions. Without this clause, documents may be read together causing inconsistencies.
Many wills include funeral wishes, though these are not binding on executors. This clause can express preferences for burial or cremation, religious ceremonies, or other arrangements. Executors should be informed of these wishes but are not legally bound to follow them.
Gift clauses specify who receives what. These include specific gifts (particular items), pecuniary legacies (sums of money), and the residuary gift (everything remaining after other gifts). Clear drafting prevents ambiguity about what each beneficiary receives.
The attestation clause records that the testator signed the will in the presence of two witnesses, who then signed in the presence of the testator. This clause is evidence of proper execution and helps prove the will's validity.
Anyone over 18 can be an executor - family members, friends, or professionals. Executors must be willing to take on the role, which involves gathering assets, paying debts, and distributing the estate. Consider their reliability, age, and location when choosing.
The maximum number of executors is four. Having more than four can make administration cumbersome, as they must act unanimously on most decisions. One or two executors is often most practical, with substitutes named as backup.
Solicitors, banks, and trust corporations can act as professional executors. They charge fees for their services but bring expertise and impartiality. Corporate executors also provide continuity - they will always exist to administer the estate.
Always name substitute executors in case your first choice predeceases you, cannot act, or renounces. Replacement executors take over if a substitute cannot act. This ensures the estate can always be administered.
If an executor named in your will dies before you, they cannot execute your will. Always include substitute executors to ensure there are always living executors available to administer your estate.
Under the Trustee Act 1925, executors have statutory powers including: selling assets, investing money, raising funds, and compromising disputes. These powers allow them to administer the estate effectively without needing court permission.
Wills often include express powers granting additional authorities beyond the statutory powers. These might include powers to continue a business, make discretionary payments to beneficiaries, or carry out specific transactions that may be needed.
An executor may reserve power to take up the role later. This allows them time to decide whether to act, often while seeking legal advice. Until they decide, interim executors may need to be appointed.
For complex estates, consider granting executors extended powers. This can avoid the need to apply to court for permission, saving time and money. Discuss whether your client wants their executors to have maximum flexibility.
An executor can renounce (decline) the role provided they have not yet "intermeddled" in the estate. Once they have dealt with assets or made decisions, they are deemed to have accepted the role and cannot renounce.
Renunciation is done by deed (a formal legal document). The executor must sign the deed in the presence of a witness. The renunciation is then filed with the probate registry. This clears the way for substitute executors to act.
In some cases, an executor can renounce in part - for example, refusing to act for part of their share while remaining executor for the rest. This is complex and specialist advice should be sought.
Intermeddling (taking steps to deal with estate assets) means you have accepted the executorship. Always check with a solicitor before doing anything if you are unsure whether to act as executor.
A specific gift leaves a particular item of property to a named beneficiary - for example, "my Rolex watch to my brother" or "my gold engagement ring to my daughter." If the item no longer exists at death, the gift fails (ademption).
A pecuniary legacy is a gift of a sum of money - for example, "£5,000 to my niece" or "£10,000 to my favourite charity." The money is paid from the general estate regardless of how the estate performs.
The residuary gift disposes of everything remaining in the estate after all debts, expenses, and other gifts have been paid. This is often the largest portion of the estate. The residuary beneficiary receives what is left.
A demonstrative gift is a pecuniary gift from a specific source - for example, "£10,000 from my NatWest savings account to my son." The money is paid from that source, but if there are insufficient funds, the shortfall can be made up from the general estate.
| Type | Description | Risk |
|---|---|---|
| Specific | Identified item (e.g., watch, car) | Fails if item no longer exists |
| Pecuniary | Fixed sum of money | Paid from general estate |
| Residuary | Remainder of estate | Most valuable gift |
| Demonstrative | Money from specific source | May require top-up from estate |
An absolute gift takes effect immediately on death. A contingent gift only takes effect if a specified condition is met - for example, "to my daughter if she reaches age 21." Contingent gifts can be uncertain and may fail if the condition never occurs.
A vested interest is a guaranteed right to the property - the beneficiary definitely will receive it. A contingent interest is dependent on some condition occurring - the beneficiary may or may not receive it. Vested interests are more certain.
Demonstrative gifts combine features of specific and pecuniary gifts. They specify a fund from which payment is to be made (like a specific gift) but allow top-up from the general estate if the fund is insufficient (like a pecuniary legacy).
Poorly drafted gifts can fail or lead to litigation. Describe gifts clearly and unambiguously. Avoid unclear references like "my main residence" if you own multiple properties. Use "my property at 123 Main Street" instead.
For parents with children under 18, appointing guardians is crucial. The will can name first and second choices. Courts will consider the testator's wishes but are not bound by them - the child's welfare is paramount.
Gifts to minors often need to be held in trust until they reach a specified age (often 18, 21, or 25). Trustees manage the money and can make decisions about education, maintenance, and advancement for the child's benefit.
A life interest gives someone the right to benefit from property (or receive income from it) for their lifetime, after which it passes to another beneficiary. This is common in second marriages - providing for a spouse while preserving assets for children from the first marriage.
Specialist clauses may be needed for business owners, farmers, or those with foreign assets. Business property relief, agricultural property relief, and tax planning provisions can save significant inheritance tax.
Every client is different. Standard will templates can be helpful, but always consider the client's specific family situation, assets, and wishes. One size does not fit all in will drafting.
The attestation clause must record that the testator signed or acknowledged their signature in the presence of two witnesses who were both present at the same time. Both witnesses then sign in the presence of the testator.
Witnesses must be: over 18, capable of understanding what they are witnessing, not blind, and not beneficiaries (or spouses of beneficiaries). Both witnesses must be present together when the testator signs.
Defective attestation can invalidate the will. Common problems include: only one witness present, witnesses signing separately, or a beneficiary witnessing. Some defects can be corrected by a court, but this costs time and money.
If there are minor execution defects, an affidavit of due execution can be obtained from the witnesses, confirming the will was properly executed. This should be done promptly while witnesses are still available.
Never allow a beneficiary (or their spouse/civil partner) to witness the will. Their gift will fail, though the rest of the will remains valid. Choose independent witnesses who have nothing to gain from the will.
The safest approach is to supervise the signing of the will in your office. You can ensure proper execution and avoid costly mistakes later. This is particularly important for elderly or vulnerable clients.
Storing the will with the solicitor who drafted it is common practice. This ensures safekeeping and makes the will easy to locate when needed. Most solicitors offer this service free of charge.
The Principal Probate Registry offers a will storage service for a fee. The will is stored securely and a certificate of deposit is issued. This provides a formal record that the will exists and where it is kept.
Some banks offer will storage services. However, banks may charge fees for storing original wills and may have conditions about release. Consider convenience versus cost when advising clients on storage options.
Storing a will at home is risky - it can be lost, damaged, destroyed, or even thrown away by mistake. The original will is required for probate, so losing it causes significant problems and expense.
A codicil is a document that amends (rather than replaces) an existing will. It must be executed with the same formalities as a will. For minor changes, a codicil can be used. For significant changes, it is usually better to make a new will.
Codicils must be executed with the same formalities as wills - signed by the testator in the presence of two witnesses who then sign in the testator's presence. The codicil should refer to the will it amends.
Multiple codicils can cause confusion - they might conflict with each other or be lost. It can be difficult to work out how all the documents should be read together. Making a new will that revokes all previous documents is often clearer.
Unless the change is very minor, drafting a new will is usually clearer than a codicil. The new will can explicitly revoke all previous wills and codicils, leaving no doubt about what the testator wanted.