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 Topics
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions