Wills explained

Wills explained - understand the legal effect of a will and how it impacts the role of the personal representatives

What is a will?

A will is a testamentary document that allows its creator (the testator) to set out who they wish to administer their estate and who they wish to benefit from it.  

A will usually:

  1. appoints executors, who will administer the estate;
  2. sets out any funeral wishes, including wishes as to burial or cremation;
  3. appoints guardians to take responsibility for children under 18 years if both parents have died;
  4. contains gifts of specific items or amounts of cash, typically to named individuals, or groups of relations, or charities;
  5. sets out who is to receive the remainder of the estate.

Sometimes wills also contain details of body or organ donation or the person who is to care for any pets living with the deceased.

A will only takes effect on the death of the person who made it and can be revoked at any time before then.

Validity of a will

The law sets out a number of formalities that must be met for a will to be legally binding. The most important of these are that the will must be in writing, signed by the testator, and signed and witnessed by two witnesses. 

The witnesses to the will should not stand to benefit from the will, and may risk losing their inheritance under the will if they do so.  In addition, they must be capable of actually witnessing the testator signing the will, so cannot be blind, too young, or intoxicated while acting as a witness.  For more information on who can act as a witness, and a full list of the formality requirements, see our ‘Validity of a will’ page.

While a petition to the court can sometimes save a will even if it has not met all of the necessary formalities, there are also several ways in which the court can be used to challenge the validity of a will. The most common of which is an allegation of undue influence - that someone has taken unfair advantage over the deceased by using their relationship to influence their decision, see ‘Validity of a will’ for a full explanation.

Mental capacity to make a will?

A person making a will must be at least 18 years of age (unless they are serving forces personnel overseas: see ‘Validity of a will’), and have the mental capacity required to make a will. This means they must not be suffering from a mental disorder that would affect their ability to understand:

  • that they are making a will and what its effects will be, i.e. that it will appoint executors etc;
  • the nature and extent of the property they are gifting in the will, i.e.they will have an approximate idea of what is in their estate and its value;
  • who they ought to consider as beneficiaries, whether they are including or excluding them from the will.

If the deceased was suffering from a mental disorder that does not affect their judgement, it is likely that they will be judged to have the requisite capacity to make a will. Equally, if they are suffering from a condition which affects them differently over time (such as Alzheimer’s) all that needs to be shown is that they had the necessary capacity on the day that the will was created. 

What is a letter of wishes?

It is common for wills to refer to separate letters in which the testator describes how they would like their personal possessions to be distributed; or, if a trust has been created, indicating the testator’s intentions behind this.

Letters of wishes are usually no more than an expression of wishes that the executors can consider. To be binding on them, the letter would need to be specifically referred to in the will. However, executors need to take care and seek advice before disclosing the letter to anyone else. 

In addition, where a relative or dependant has been excluded from the will, there are usually very personal reasons behind the decision and, since the will becomes a public document when a grant is issued, side letters can be used to set out details in a more private and confidential manner, should the excluded person make a claim against the estate. In such a case, the letter of wishes will need to very clear as to the reasons for excluding the relative or dependant, and explaining why they have chosen to leave their assets elsewhere. Even then, the court may decide to overrule the provision made in the will.

How many wills can you have?

Generally, a person will only have one will. However, it is common for people who have overseas assets to make a will in that country as well. This is so that the overseas assets can be dealt with in accordance with the local laws as smoothly as possible.

How multiple wills work together depends on how they are drafted. Usually, the UK will deals with the estate of the deceased to the exclusion of assets held in the particular country where the other will is held. The overseas will would usually state that it only deals with the part of the deceased’s estate that is located in that country.

When a person chooses to have more than one will they should be professionally drafted to ensure one does not accidentally revoke the other.

Storing a will

Storing a will is a matter of practical importance, but not subject to any legal requirements. There are various ways in which a will can be stored for safekeeping, and the most important things to remember are that it is safe from the risk of fire or damage, and that the executors know where it is and have access to it. 

There is no legal requirement in England and Wales for wills to be deposited in a central registry. Whilst it is possible to deposit wills at a probate registry for a fee, very few people do this.

If a bank, solicitor or will writing company wrote the will then the original will usually be held at their office, a copy being provided to the deceased. But remember that the will is the property of a testator.

If the deceased wrote their own will then this it should be kept in a secure place within their home or lodged with their bank. Alternatively, the will can be passed to a close relative or their executor to hold on their behalf.

It’s good practice to store any codicil in the same place as the will it is amending; but, again, this is for practical reasons. It is not a legal requirement for the testator to notify people who are storing a will if it is revoked or amended, but in the long run it could avoid confusion and unnecessary protracting the administration of the estate.

If you are trying to locate a missing will, please see our ‘Lost or missing wills’ page for more options to help find the will. 

What happens to the will on a death?

The will, and any codicil(s), needs to be kept safely after the death. No documents should be attached to it and no markings should be made on it.

The original will, and any codicil(s), is sent to the probate registry with the grant application. It will be retained at the registry and a copy will be incorporated into the official copy of the grant that is sent to the personal representatives making the application.

The will, and codicil(s), then become a public document and anyone can apply to the registry for a copy of the will and/or the grant of probate (see ‘Grant of probate’ for more information on this process).

Revoking a will

There are a number of different ways a will can be revoked. The testator can revoke the will themselves by destroying the document with the intention of revoking the will. (If they accidentally destroy the will it will not be revoked.) 

A will is usually revoked by any later will. To ensure this happens, it is normally sensible to include a sentence in the latest will explaining that any previous wills are revoked. 

Wills are also automatically revoked if the testator gets married, or enters a civil partnership, unless the will was clearly made in contemplation of the upcoming ceremony. If the testator gets divorced or has a dissolution, in that their former spouse is automatically removed from the will. 

For more information on any of these methods, please see our ‘Revoking a will’ page.

Amending a will

It is possible to amend a will without revoking it. The most effective method of making simple amendments to a will is to use a codicil – a formal, short document which alters the effect of a will. A codicil has the same formality requirements as the will itself (see ‘Amending a will’ for more details of these requirements). A codicil will not have any legal effect unless the relevant formalities are complied with. 

If multiple changes, or large changes, are going to be made it is better to create a new will. This can simplify things for any future personal representatives, and make changes less conspicuous; as codicils become public documents after the death of the testator, beneficiaries would be able to see, by comparing the will with the codicil, how legacies may have been increased or reduced by the codicil). 

  • Validity of a will

    Understand the formalities that are required to make a legally binding will

  • Lost or missing wills

    Learn what to do if the will is missing, places to look, people to contact, and companies that can help.

  • Amending a will

    Guidance on how to make legally binding changes or replacements to a will, and how to make sure that any changes are not confusing to personal representatives 

  • Revoking a will

    Guidance on how to effectively revoke a will and ensure it has no ongoing legal effect