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Of all subjects on which I receive questions, the one which probably attracts the most questions is that of wills. Perhaps it’s not surprising. Everyone dies, whereas, not everyone buys a house or has an employment claim or a shareholder dispute.
Wills and succession of property is something which has real potential to affect everyone, either as a testator or a beneficiary or both.
Of all the questions I receive, I think the number one question is whether or not the services of a lawyer are required. The simple answer is no - you can do a will by yourself. However, generally, I wouldn’t advise it, because there is more chance of a mistake occurring.
If you must, then I would advise you write the will out in long-hand. While typed wills are accepted I just say, don’t do it. Write it out, date it and sign it.
Over a series of judgments, the Jersey courts have relaxed some of these formal rules (for instance, dating or typing wills) no doubt because ultimately they want a testator’s wishes to be respected. My advice is as I have set out and if you deviate then you run a risk of your ‘DIY’ will being held invalid, and it is a risk which is pointless to run.
I also receive questions from beneficiaries about entitlements, and particularly why receiving money under a will takes so long.
There is a good reason why there is sometimes a delay: a claim can be made against an estate (and therefore its assets) for about a year after death. If money is paid away to beneficiaries during this time and a claim is then made by a third party, that money has to be got back, which is not always possible or easy. How do you get back £30,000 from an impecunious beneficiary who has since blown it on a cruise? So, executors will often hold onto the assets and not make distributions until such time as the period in which a third-party claim can be made has expired.
Pictured: Executors hang onto assets until everyone has had a chance to make a claim to avoid money being spent too soon.
How do you cancel a will if later you change your mind about what you want to happen to your assets when you pass away? If you have the original will, you simply tear it up; destroy it. If the original is held by a lawyer and you make a new will, the new one will cancel the older one.
However, a word of caution: if you hold the original will and you are not making a new one straight away, but you want to make sure the will is cancelled, you may be better off drawing lines through the will or writing ‘cancelled’ or ‘revoked’ in clear words and signing those words/marks rather than discarding it. The reason for this is to remove any chance of a photocopy of your will being produced and admitted into probate. While it is unlikely that a photocopy would be accepted, there are cases in which a copy has been allowed. As I say, it is unlikely because in such circumstances a court needs other evidence to support a copy will, but caution is best and writing ‘cancelled’ and signing that on each page is the safest method (in the absence of executing a new will).
Running on from this issue is whether a will can be cancelled/revoked by a person who now lacks mental capacity to make a will. The answer is no. A person who is not of sound mind, or who lacks mental capacity to make a will, cannot revoke one. The exception to this (and to making a new will) is if the person switches from periods of capacity/incapacity. Provided the person is acting during a time in which they have sufficient capacity, then revocation or the making of a new will is valid. Of course, the circumstances are such that it could (and probably would) raise questions. Thus, it would be wise to have a doctor present to verify that in their professional judgement, the testator had capacity at the time.
Pictured: Advocate Olaf Blakeley.
Another useful matter to address is what happens if you leave a particular asset, or group of assets, to a person but, at the time of your death, the assets no longer exist.
The general rule is that person gets nothing (unless they are also entitled to other assets under the will). If you leave someone your prize ‘E-type Jaguar,’ but when you die that no longer exists because you sold it and bought a Ford Cortina, then the beneficiary gets nothing because the thing you designated in the will is no longer in existence. There are exceptions to this rule, but they are not straightforward. In some cases a court may accept that a beneficiary is entitled to a different asset which is a replacement for the one specified in the will. However, this is an exception and not the rule. If your will said, “I leave all motor cars which I may own at the time of my death to Joe Smith” then the make, model and colour are all immaterial.
As is often the case at the end of my articles in which I explain the operation of law, I have to advise that the most sensible course of action is to take proper advice. For tasks such as making a simple will, the fees are moderate and you will have peace of mind the document has been executed properly and will do what you want.
