Wills: meaning and explanations

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Wills: meaning and explanations

Our policy

At Net Lawman we pride ourselves on writing documents in plain English. Our wills are no exception. However, there is no way around the necessity to use terms which have particular legal meanings, like “trustee” or “tenant for life”. So, while you can add to and delete from our wills, be very careful before you change any words to something you think is simpler!

The Net Lawman policy in drawing all our documents is:

Give you all the text you might need, so that you can easily delete what you do not need;
Set it out so that a deletion or addition does not affect other parts of the document;
Keep the language modern;
Make sure it holds water as a legal document.

Legal Wills are no exception to this policy, but as a subject of law, wills are full of old material - words and phrases not often found in every day language. We therefore have to compromise sometimes. Plain English has to give way to real law.

Meanings and explanations:

Names and addresses: get them right, particularly of your executors and beneficiaries. Give full real names. Do not abbreviate a name, like Dick for Richard;
Beneficiaries: describe beneficiaries by their relationship to you, their full name and their address, for example: “My niece Annabel Robinson of 44 Acacia Avenue, Upper Downtown, SP56 4QX.” This will help your executors to contact her easily and immediately;
AKA: if you may have assets in a name which is not your true name, mention that as “also known as”
Family first name: if you have the same name as your son or father, make sure it is clear which of you is writing the will!
Not yet born: if you make gifts to a group which may not be complete, like your grandchildren, then the law will provide for inclusion in that group of all those grandchildren living at the date of your death, (or born within 9 months of your death). If this is not what you want, you can specify names or provide a cut-off date for their birth or other qualification for membership of your group;
Blood is thicker than water: the law provides for any group defined by relationship to include members who are in that group through adoption or who are technically illegitimate. It is not only that beneficiary who is affected by this rule. It applies also to any person whose membership of the group relies on adoption or legitimacy of some other person, such as a parent;
Step children and relatives by marriage: are not taken as being included in a group. If you want to include your wife’s niece, you will have to say so;
Describe gifts: a vague term is likely to be void. Make sure you identify which item when you have several of the same basic description, such as cars, horses or antique chairs;
Gifts to executors or trustees: if you wish to leave a gift to your executor or to someone who is a trustee under your will for their own benefit, state that the gift is given to them 'absolutely'. That makes clear that they do not hold the gift as trustee for some other beneficiary;
Gifts to witnesses: are void. End of story. Do not ask a beneficiary to witness your will;
Use of codicils: before the days of word processing, it was expensive to change a will. Lawyers therefore made amendments by one or more codicils. A codicil is a note of the change, witnessed exactly like a will. Today, a codicil is rarely used and may confuse your family and executors. Do not use;
Date of your will and revocation of earlier wills: every time you make a new will, you automatically make any previous one void. You do not have to include the eternal words “Last will and testament” to effect this. It is the law. So, even if you have left wills scattered all over the place, only the latest is valid. So the important feature is to date the will currently and to make sure your executors either know about it, or, better, will find it easily when you die. It follows that you do not need to revoke a former will. Nonetheless, as a “belt and braces” precaution, many will precedents do provide for this;
Your holiday house: if you have assets in some other jurisdiction, then a will made earlier and providing for those assets may not be revoked by a later will which does not. Your executors will need to take out a separate application for a grant of probate in any country in which you have assets. Property in respect of which they have taken out a grant does not have to be included in their application for a grant in England. But beware other tax angles of repatriation of money and profits. Obtaining a grant is one thing. Bringing the family ranch back home to England may be quite another!
Beneficiaries who die before you: It may happen that a beneficiary dies before you do. When that happens we say the gift “fails”. If you make no provision for it passing to some other person, then one of three things happens, depending on the wording of your will:

It may be distributed according to the rules on intestacy;
If it is a gift to your child or other descendant, section 33 of the Wills Act will apply so that the failed gift passes to or among the descendants of your deceased descendant;
It may be treated as a gift to charity. Charity is strictly defined in law as: the relief of poverty, the advancement of education or religion and other purposes beneficial to the community.

In drawing a will, we deal with this prospective problem by providing for a “gift over”, that is to say there are additional words for you to put in the name of some other person or organisation to whom you would like that gift or category to go:

Validity of foreign will: English law will accept a will as valid made if it was made:

In accordance with the law required by the country where it was made; or
in the country where at your death you were domiciled or had your habitual residence; or
In the country of which you were a national.

Mortgaged property: the basic rule is that debts secured on property must be paid out of that property unless you say specifically to the contrary in your will;
Attestation clause (witnessing): this is the name of the paragraph at the end of a will, usually in time proved words to provide compliance with the Wills Act;
A “side letter”: no document can be relied on in a court of law which is not executed as a will;
However, it is often useful to leave close to your will, a side letter explaining details of some aspect of your affairs which may assist your executors. This is done most often in connection with the operation of a business, when the will maker can give comments and suggestions relating to staff and management. However, you are not limited in any way, in what you can say in such a letter;
Conditional gifts: it is perfectly possible to make a conditional gift - such as a gift to someone on achieving a qualification or some other identifiable target. Your executors will hold the gift as trustees until the beneficiary either does or does not achieve your target. It is always best to provide a time frame and an alternative beneficiary in these circumstances. But a condition which is “contrary to public policy” may be declared void by a court. An example would be a gift “to my son Darren provided he divorces that terrible woman he married”
Challenges to your will: it is possible to provide in your will that your executors may not dispense a gift unless the beneficiary has first undertaken not to challenge the will in court. Alternatively, and additionally, you can provide that any such gift shall be forfeit if that person challenges your will.

Related documents: power of attorney - legal wills - general power of attorney

If by chance you find any error in this information page, do please tell us. We should also welcome your suggestions for new subjects for information pages. These notes:
Do not provide a complete or authoritative statement of the law;
Do not constitute legal advice by Net Lawman;
Do not create a contractual relationship;
Do not form part of any other advice, whether paid or free.