Common problems with wills

For the unprepared, the process of making a will and ensuring it is followed properly can contain many pitfalls. Every step taken must abide by the letter of the law and any diversions can result in an invalid will and the moving of the deceased’s estate into the realm of intestacy law.

From unlawful executorship and problems with the testator (the person writing the will) to solicitors not doing their jobs properly, careful preparations are essential to ensuring that your will is carried out in the way you intend.

Here are the common mistakes and problems that people fall foul of.

Improper execution

Choosing your executor carefully is essential. You obviously want to choose someone you trust, but an element of pragmatism must figure in your decision. Who can you trust that has the ability and the character to execute your will properly?

Errors that occur with the execution of a will usually follow 3 different routes:

·         Mistake

Although some estates are relatively simple for an executor to administer, many are more complex. Without an understanding of what the job requires, it can be easy for an inexperienced executor to make mistakes.

·         Obstruction

Executors can become frustrated if they find the process difficult or if beneficiaries are perceived to make unreasonable demands on the estate. Sometimes they'll choose to react to events in an unhelpful manner and delay proceedings.

·         Disputes

It is common for wills to create trusts whereby the executors are made trustees. Setting up a trust can further complicate the administration of a will, raising the possibility of conflict.

Inaccurate drafting

As with your executor, it's vitally important to choose your accountants carefully. You'd be surprised how often wills are not drafted properly by solicitors especially with regards to taxation. The point of a will is to express in no uncertain terms the testator's intent.

If the will contains ambiguous clauses, it leaves the door open to misunderstanding and even conflict between beneficiaries. A probate court can call for external evidence of the testator's wishes if the will is too opaque but this will result in additional delays and complications.

Problems with the testator

On rare occasions problems with the testator can render the will invalid:

·         Mental state

The testator must be deemed mentally capable at the time of signing the will for it to be valid. If, for example, an elderly person with mental health problems or a person dealing with addiction to substances signs a will, it can be declared invalid. Sometimes this is not recognised until after the testator is dead, introducing additional complications.

·         Misunderstanding

There have been instances where the testator has not fully understood the will that has been signed.

·         Coercion

Sometimes friends and family members can put pressure on a testator to write them into the will or give them more of their estate.

We can help

Our accountants can assist you with writing your will, choose your executor and plan your estate.

Contact us on 01753 892 815 or email info@hmiller.co.uk to find out more.