What you should never put in your Will

Last updated: October 2024 | 4 min read

To write a valid and effective Will, you need to know what to include - but as importantly, what to leave out.

This article explains legal restrictions, assets to exclude, problematic clauses, and how to ensure your will's effectiveness. We'll cover business interests too.

Why is it important to get your Will right?

A Will is a legal document that outlines how you want your estate distributed after your death.

It gives you control over what happens to you possessions and ensures your final wishes are carried out. It also lets you nominate guardians for any named children.

Dying without a valid will in the UK - known as dying intestate - or having a Will that contains mistakes means a probate court could decide how your assets are distributed.

Not only might a judge make decisions that you wouldn't have been your own, estate administration can become more complex and time-consuming, potentially delaying the probate process and the distribution of your assets to your loved ones.

So knowing what you shouldn't put in your Will is as important as knowing the structure to use or what you should include.

The Wills Act 1837 and its amendments give the legal framework for Wills in England and Wales.

A legally binding will must be in writing, signed by the testator (the person who makes it), and witnessed by two people.

In Scotland and Northern Ireland, the law is slightly different, but both countries recognise Wills made under English and Welsh law as valid.

Certain things and provisions are prohibited or ineffective when included in a Will. Others, because your Will is a public document once probate is granted, are best kept private.

Funeral arrangements

Wills are often found after the funeral has taken place.

If instructions come to light after the funeral, it can cause disappointment and family conflicts.

Additionally, when you die, you no longer own your body so you have no legal right to what happens to it. Funeral wishes, even if you include them, are not legally binding.

Pre-paid funeral plans, letters to executors, or discussions with family members all offer alternative methods for communicating funeral wishes.

We recommend that you leave basic instructions for funeral arrangements (cremation or burial, simple or lengthy service, how to dispose of your body or ashes) in your Will, but write much more detailed wishes as to the details of commemoration services, wakes, participants and locations in a separate letter to your family.

What assets should never be included in your Will?

Certain assets pass outside your Will as a result of their legal status or ownership structure.

Jointly owned properties

Assets owned with someone else as joint tenants remain owned by the surviving person, likely your spouse.

You can own property in two ways. Joint tenancy is one way, where all owners own the whole of the property. About 60% of UK homeowners hold their family home as joint tenants, although it is becoming less common. The other is tenancy in common, where each owner owns an identifiable proportion, such as 50:50.

On your death, property as joint tenants remains owned by the surviving owner(s), so doesn't pass into your estate. Because the property is not in your estate, this 'right of survivorship' effectively overrides any instructions in your Will.

So if you want to leave your share of your house or flat to people other than the other owners, you need to sever any joint tenancy and hold the property as tenants in common.

The property transfer to the surviving owner happens outside probate. The co-owner simply needs to provide the death certificate to the Land Registry to update the property records.

Joint bank accounts

There aren't many things that you might own as joint tenants. Other than your home, the most common other ones are joint bank accounts.

Joint accounts and those with designated beneficiaries, also pass outside the Will for the same reason.

This money typically transfers to the surviving account holder, while accounts with named beneficiaries pay directly to those individuals.

Life insurance policies and pension plans

Life insurance policies and pension plans are typically structured as trust funds (in legal terms, 'settlements'). In return for paying in, you receive a right to nominate someone (which could be you, a spouse, or others) to receive a sum of money back under certain circumstances (such as death or reaching retirement age).

Because these investments give a right but only under certain circumstances, they don't form part of your estate when you die, and can't be controlled by your Will.

Instead, when you make your Will, as a policyholder, you should review your 'beneficiary designation' (who is named to receive the payout) directly with the provider.

Life insurance payouts are usually tax-free in the UK, which can help with inheritance tax planning. Pension benefits often follow similar rules, passing directly to named beneficiaries rather than through the estate.

Some providers allow you to nominate a trust fund as a beneficiary, and for that trust fund to be set up in your Will. That allows you to set the rules as to what happens to the money in your Will, even if the money is not part of your estate.

Things you don't own

It may seem obvious that you only have control over things you own. But there are some things that we believe we own when in fact we don't.

Interests in trusts are one (as above). So you can't direct how a trust fund of which you are a beneficiary should deal with the money that previously was distributed to you.

Another are assets 'bought' under a hire purchase agreement. These contracts are lease agreements, where you hire the asset until you have paid off the value of the asset plus interest. As more assets are bought under these agreements (cars, phones, electronics, white goods) you might find that you don't own some of the things that you think you own.

Business interests

Business interests often require complex succession planning. About 30% of UK family businesses fail to survive into the second generation due to inadequate planning.

While you can leave shares in a company in your Will, other corporate documents (like a shareholders agreement and the articles of association) might reduce the value of those shares considerably by imposing conditions on what happens to them on your death. Or other owners of shares in the same company might have rights to buy the shares before they can be distributed according to your Will.

You or a solicitor should review the company structure documents before making any provision in your Will for the shares.

Personal wishes

Your last Will and testament is an important document that has a particular purpose. It isn't a place to reflect on your life or leave anecdotes.

If you want to leave messages to loved ones, it is better to do so in a side letter to the Will - a letter that is not part of your Will and remains private after your death.

It is fine to reveal secrets, air regrets, explain why you are giving gifts, leave instructions for care of pets, and express personal wishes, but your Will isn't the place to do so. Remember that your Will becomes part of the public record after probate is granted.

Our favourite way of leaving messages is to make a video. While a letter can be personal, videos can be fun and communicate far more information than letters often do.

What are conditional gifts and why are they problematic?

Conditional gifts in Wills require beneficiaries to meet specific conditions before receiving the gift. These bequests with a condition attached can create legal and practical issues.

Courts may invalidate conditions deemed against public policy. For example, conditional gifts pose enforceability challenges, potentially lead to disputes, and face possible invalidation.

Examples of problematic conditions include requiring a beneficiary to marry a specific person, follow a particular career path, or change religious beliefs.

Your specific desires might be backed by good intentions - to ensure that gifts are used for the benefit of a recipient, but the disadvantage of putting conditions on a gift is that during the probate process, it might be difficult for the executors to determine whether they have been met.

For example, if you wanted to leave someone money for a pet's care, but the pet dies shortly after you (in natural circumstances), should the beneficiary receive all the money?

Provisions for vulnerable beneficiaries

Vulnerable beneficiaries - those with disabilities or addictions - need special consideration in your Will.

If someone is financially dependent on you, you must protect their interests and ensure they receive proper support.

Leaving large sums directly to vulnerable beneficiaries can lead to financial exploitation by others, loss of means-tested benefits, or inability to manage the inheritance.

Instead, you might set up a trust, an approach that benefits approximately 3% of the UK population.

Trusts allow you to control how and when your loved ones receive their inheritance, protecting them from potential risks. You might, for example, set up a trust where the vulnerable person has a life interest, and after their death, for the remainder to pass automatically to other people.

Why should discriminatory clauses be avoided?

Discriminatory clauses treat beneficiaries differently based on protected characteristics like race, religion, or sexual orientation.

Courts might challenge or invalidate these provisions. About 5% of contested Wills involve allegations of discrimination.

Such clauses might disinherit a child for marrying someone of a different faith or exclude family members based on their sexual orientation.

Courts can overturn or modify Wills containing discriminatory clauses, potentially altering the distribution of assets in ways the testator didn't intend.

How can you ensure your Will is legally valid and effective?

Most Wills that are not valid are ones that the deceased wrote themselves, without guidance. Only about 0.5% of professionally drafted wills face legal challenges.

Hiring a solicitor or a Will writer to make your Will is one of the best ways to avoid mistakes. However, if you use a good template, and your wishes and situation are straightforward, you might not need to involve anyone else.

The following don't necessarily mean that you should involve anyone else, but are indicators:

  • you have a blended family, with children from different relationships (or your children have children from different relationships)

  • someone is financially dependent on you (including a spouse or civil partner)

  • you're unmarried, but likely to marry or enter a civil partnership soon

  • you want to exclude certain people from your Will and make sure that they don't inherit

Will-writing can seem daunting, but proper guidance makes it manageable. A well-written will protects your loved ones and honours how you want your estate to be distributed. With help, you can create a document that gives you peace of mind about your family's future.

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