This is a subscriber-only article
Making a will is something everyone should do, but many never get around to it.
Anyone that owns property or assets should make a will.
This ensures all property and assets (the estate), are distributed by the executor of the will, in accordance with the wishes of the deceased person.
A valid will
A will can only be considered valid if it is made in writing, dated, and the person making the will (the testator) is over 18 years old, or be or has been married. The testator must be of sound mind and have the capacity to make a will, and act of his/her own free will.
The will has to be signed and witnessed in the presence of two witnesses. Neither witness or their spouses (or civil partners) can benefit under the will. The two witnesses also need to sign the will in the presence of the testator.
A will is a valuable document and if at all possible, should be prepared by a solicitor, and signed in a solicitor’s office to avoid any issues later on. As part of making a will you will need to appoint an executor(s), who will be responsible for carrying out your wishes.
If you die without making a valid will, you will have died ‘intestate’. What this means is that your property (your estate) will be distributed among your living relatives according to the intestate laws of succession, once a grant of Letters of Administration have been taken out by the nearest next-of-kin at the date of death.
Making changes to a will
To make changes to a will you could complete a codicil. However, many solicitors advise it is more appropriate to make a new will, and revoke or cancel the previous will. This helps avoid any ambiguity or future conflict. A codicil is a document that amends an existing will, but does not replace it.
Section 78 of the Succession Act 1965, provides that in order for a will to be valid, it must be signed by the testator in the presence of two witnesses. The law is very strict on this and if this procedure is not complied with, any changes may not be legally effective.
Dear Money Mentor
I am the eldest son of a dairy farmer and I work in the IT sector. The family farm is run by my father with the help of my younger brother. My mum is deceased. I know my mum and my father made a will before she died, leaving everything to each other, or the survivor.
I am not sure if my father has made a new will, or what his intentions may be for the future. He is in his late 60s. I am wondering, if he has made a new will, can it be contested, and if so, on what grounds. I know wills can be changed and there are certain rules around this. I have other siblings, one which also lives at home on the farm but has her own career.
Thanks in advance,
Ollie
Margaret writes
Hi Ollie,
Based on your email, I assume your father inherited all assets and property as he is the surviving spouse, after your mum’s death. This is a common type of will between married couples. When this happens it is up to the surviving spouse (your father), to make decisions on what he would like to happen to the estate when he passes on.
There are certain cases where a will can be contested. One such case would be where a will is not valid because it was not made properly, such as not signed or not witnessed. Another case might be if the testator (the person making the will) was of unsound mind or put under undue influence or pressure from a potential beneficiary, or another person. It is very important that a testator gets independent legal advice before making a will.
Section 117 of the Succession Act 1965, allows a ‘child’ to make an application to the court where they feel they have not been adequately provided for by their parents. The test for a Section 117 application involves two parts.
Firstly the child would need to satisfy the court that there was a failure in the parents ‘moral duty’ to make proper provision for the child, and secondly, that the child had a need which the parents could have satisfied, but chose not to. If the court decides, taking into account the parents’ means, that both parts are satisfied, the court can then rule that provision must be made for the child from the estate.
An action to challenge a will must be taken within six months of probate being granted with no exceptions.
Wills can be changed by either making a new will, thus revoking or cancelling the previous one, or by adding a codicil (an amendment) to the existing will. There are rules to be followed around this.
A conversation with your father might be a good idea to see if he has made a new will or perhaps to see what his future plans might be. I know this may not be easy, but perhaps encourage him to speak with his solicitor or accountant, as there may be legal and/or tax implications he may need to be aware of.
A family meeting might also be a good idea, to try avoid any future conflict within the family, and to outline what are the expectations of you and each of your siblings.
All the best,
Margaret
SHARING OPTIONS: