UK: The Importance Of Making A Will

Last Updated: 29 November 2012
Article by Smith & Williamson

A badly thought out/ poorly drafted Will, or no Will at all, can create lasting problems for your loved ones.

The points outlined below apply to England and Wales but for Scotland and Northern Ireland there may be other issues to take into account.

Why make a Will?

The main reasons for making a will are as follows:

  1. to ensure that your possessions go to the people and/or organisations that you wish to benefit;
  2. to choose the persons that you wish to administer your estate and to grant them appropriate powers to carry out your wishes;
  3. to appoint guardians for minor children;
  4. to minimise the tax burden on your beneficiaries; and
  5. to make stipulations with respect to your funeral.

The dangers of dying intestate

Without a valid Will on death everything you have will pass to relatives according to fixed rules.

If you die intestate a lifetime companion to whom you are not married/in a civil partnership will receive nothing and would have to go to court to pursue a claim.

If you are married/in a civil partnership and have children should you die intestate only personal chattels and the first £250,000 will go to your spouse absolutely. Your spouse/civil partner would also have a life interest over half of the residue. If you are married/in a civil partnership, with no children but with surviving parents, siblings (or their descendants) the first £450,000 plus half of the residue will go to your spouse/civil partner absolutely.

If you have no spouse, children, surviving parents or siblings then a distant relative – even one with whom you have had little or no contact – may be entitled to a share of your estate. Finally, if you leave no relatives at all, everything will go to the Crown, Duchy of Lancaster or the Duchy of Cornwall.

Should you die intestate your executors will also be chosen according to fixed rules and they may not be the people most suitable to act; indeed, they may well be people whom you would never have chosen.

Who will look after your children?

You will need to appoint guardians for children who are under 18. This is particularly important if a woman is not married to the father of her child. For births since 1 December 2003, if the father is named on the birth certificate then he has parental responsibilities and will therefore be the guardian. This is not the case for births prior to that date.

Guardians will also be necessary if both parents die at the same time, for example in a motor accident.

Making a Will

To make a Will you need to consider a host of issues concerning you as an individual and your family circumstances, your estate, intended beneficiaries and your executors.

We run through below some key issues that you should consider so that the instructions you provide ensure the Will drawn up for you meets your requirements. When you have a Will that you are happy with we would suggest that it is reviewed from a tax perspective. It is possible that tax efficient changes could be made, which whilst altering the Will would do so in a way that you are comfortable with. We would be happy to advise you.

What have you already given away?

You should keep an ongoing record of any significant gifts of assets and who received them. This will assist you in determining what additional gifts you may wish to make in your Will. In addition, gifts made within the seven years before your death can affect the inheritance tax position.

Your estate

To consider your Will planning it is worth thinking about the following issues.

How much is your estate worth?

List all the things you own (whether located in the UK or abroad) with an estimate of their value. This will give you an idea of the extent of your estate and may help you decide how you wish to divide your estate amongst those you wish to benefit.

If you are the life tenant of a trust the assets with respect to which you have an interest may form part of your estate on death. You should take specific advice.

What can you dispose of?

You may not have complete freedom to leave some assets exactly as you wish. If you own your home (or any other asset) as 'joint tenant' with someone else, on your death your share will generally pass automatically to your co-owner regardless of what your Will says. You may also have shares in a family company or an interest in a business partnership which has to be disposed of according to a shareholders' or partnership agreement.

If you own foreign property local law may stipulate how the property will pass on your death (forced heirship provisions).

Who do you need to provide for?

You will probably want to provide for any children you have and may want to make special provisions for minor children. If you are married/in a civil partnership or engaged, you may want to benefit your spouse/civil partner. If you are unmarried you may want to provide for a long-term partner or fiancée (though note that marriage/entering into a civil partnership can revoke a Will – see later section).

Stepchildren, surviving parents, siblings or other relatives, godchildren, close friends or charities may also feature in the list of people or organisations you wish to benefit on your death.

Dividing your estate

If there are specific items or sums of money that you wish to be given to any particular people or charities, these should be listed. Beneficiaries should be clearly identified, with each beneficiary's full name, current address and their relationship to you. For charities, note the registration number.

Will trusts

There are specific tax rules pertaining to trusts. These rules can be complex and vary depending on the type of trust. When considering a new Will or reviewing your existing Will you should understand the tax implications. We would be happy to advise you. In particular, the IHT rules applicable to trusts changed dramatically in 2006. To ensure it is still tax efficient your Will should have been reviewed in the light of these changes. If this has not happened we would be happy to carry out a review for you.

Gifts of residue

Residue is what is left over when all specific gifts have been distributed and debts, taxes and expenses associated with the estate have been paid. A Will should always include a gift of residue, because nobody knows in advance exactly what their estate will comprise on their death. A gift of residue will also mop up any specific gifts which fail, for example, if a named beneficiary dies before you.

Executors and trustees

Your executors will take charge of your estate, wind it up and distribute it according to your wishes, and they are granted certain legal powers regarding investment and insurance. If any beneficiary is under 18 when you die, the executors may also act as trustee for that person until they come of age.

You may appoint anyone to be your executor who is over 18 and has mental capacity. You may wish to have two executors, your spouse and one or more of your adult children or other relatives or friends. If the estate is likely to be complicated or you are making a trust to take effect on your death, we recommend that you appoint a professional to act jointly with a family member.

Your executors should have agreed to act and know where your Will is kept.


Once you are happy that the Will meets all your requirements it will be necessary to sign it. You should bear in mind that for a Will to be valid a number of requirements and formalities must be observed. Failure to meet these requirements will render your Will invalid. An invalid Will is the same as having no Will at all so your estate would pass under the intestacy provisions with all the negative consequences explained above. You should take advice to ensure you have complied with all the legal necessities.

Marriage/entering into a civil partnership can revoke a Will

The general rule is that any pre-nuptial Will is automatically revoked. The exception to this is where the Will was made specifically in contemplation of that marriage.

Note that if you divorce after making a Will your ex-spouse is treated as though he or she had died before you, and gifts made to them fail.

When might you need to change your Will?

You should review your Will regularly and update it whenever family circumstances change or there are changes in the law. For example:

  • if your children marry or new grandchildren are born, they may not be covered by the provisions of your existing Will;
  • if you are separated, but still married, the Will and any gifts made to your estranged spouse still stand, so he or she, and not any new partner, will benefit;
  • if there are changes in tax law your existing Will may no longer be tax efficient.

Better to be organised

It will be easier for your family to know the extent of the assets which they will be required to deal with. You should list any life or endowment policies and pension arrangements and prepare a note setting down what happens to the proceeds of these on your death. Keep all documents relating to your investments together and make sure that your executors will be able to find them.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.