Terms in a will: making sense of the words
About this series of articles
This article is part of a series about how to write your own last will and testament.
In this article, we explain the meaning of the legal words that you will find in every will.
Using plain English in wills
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 will never find a 'hereinafter' or complex grammar in one of our wills, we do use some words that require 'translation'. Plain English has to give way to real law.
Meanings and explanations
The person who makes the will is a testator.
The person who carries out the testator's wishes is an executor.
A person to whom a gift is left is a beneficiary.
A person who manages a trust set up for a beneficiary is a trustee.
Names and addresses
Make sure you get them right, particularly of your executors and beneficiaries. Give full real names. Do not abbreviate a name, like Pete for Peter. Also give full addresses including post codes.
If you are making a gift to a charity, include the charity's registered number as well.
Describe beneficiaries by their relationship to you, as well as 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 them easily and immediately.
If you have assets in a name which is not your true name, mention that as 'also known as'.
If you have the same name as your son or father, make sure it is clear which of you is writing the will! You could add your date of birth to your name, such as 'John Evans, who was born on 5 October 1962' or use relationships, for example, 'John Evans, son of Edward Evans and Sarah Evans'.
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.
Description of gifts
Describe gifts as much as possible. An unclear description (that could be interpreted in different ways) is likely to be void. Make sure you identify which item when you have several of the same basic description, such as landscape paintings.
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
Gifts to witnesses are void. There is no exception. Do not ask a beneficiary to witness your will.
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 daughter Felicity provided she divorces that terrible man she married'. Remember to say what is to happen to that gift if the condition fails.
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!
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.
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. We advise that you do not use them, and instead, create a new will.
Date of your will and revocation of earlier wills
Declaring that a will is no longer valid is called revoking it. You can read more about that here.
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. The law is that a new will supersedes an old one automatically.
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.
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 means you add as beneficiary the name of some other person or organisation to whom you would like that failed gift to go.
Validity of a foreign will
English and Welsh 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, and
- in the country where at your death you were domiciled or had your habitual residence; or
- it was made in a country of which you were a national.
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. We have a separate article on signing that you may like to read.
Letter of intent
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 letter of intent explaining details of some aspect of your affairs which may assist your executors. This is done most often in connection with the bringing up of your children. But there are many other areas which may be covered, such as 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.
Despite being named similarly, a living will, also known as an advanced healthcare directive is not a last will and testament.
Instead, it gives instructions to people who might make decisions about your healthcare for you while you are still alive as to what to do in certain circumstances.
A living will is no longer a commonly used document in the UK. Instead, one of the two types of lasting power of attorney take its place.
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.
We recommend that you read about which possessions you can leave in your will next. (There are certain things you can't leave because you lose ownership when you die).
We believe that everyone over 18 should make a will. To help you, we provide some of our more straightforward templates (likely to be suitable for most people) absolutely free with no catches or conditions. You can find them here. There will be one to suit your situation.
If you are in doubt as to which one might be most suitable, read our explanation of each that explains the differences between them.
Please note that the information provided on this page:
- Does not provide a complete or authoritative statement of the law;
- Does not constitute legal advice by Net Lawman;
- Does not create a contractual relationship;
- Does not form part of any other advice, whether paid or free.
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