Standard Single and Mirrored Wills If both partners have a Standard Will drawn up at the same time, mirroring each others instructions and bequeaths, then there is a cost saving because some of the preparation is duplicated. A Mutual Will is similar to a Mirror Will but includes clauses to the effect that the surviving partner must stand by the Mutual Will and may not revoke it after the death of the first partner. (Mutual Wills are not recommended because of the potential pitfalls they involve. They include contractual arrangements which have been been subject to much scrutiny by the Court of Appeal. In its 1980 report the Making and Revocation of Wills (Cmnd 7902) the Law Reform Committee referred to the fact that mutual wills were extremely rare and noted certain problems regarding the doctrine.) What is included in a basic standard Will? Revocation of previous Wills and Codicils In order to avoid any confusion as to whether the Will is intended to be the last Will of the Testator it will normally include what is called a “revocation clause”. Normally the revocation clause will be worded as follows:
“I [name] of [address] revoke all former testamentary dispositions made by me and declare this to be my last Will”
Different wording is required where the Testator owns property situated overseas or where the Testator and his or her spouse make “Mutual Wills” (Wills made by each spouse in similar terms but including agreement by each to abide by their Will after the death of the other).
Appointment of Executors An “Executor” is a person who is appointed under a Will to deal with the Testator’s Estate upon their death. Their job is to evaluate the Estate of the deceased, to discharge any liabilities of the Estate including any Tax and to distribute the remainder of the estate to the beneficiaries. Normally a Testator will name his or her chosen Executor(s) in the Will and make provision for alternatives to be appointed should their first choice of executor(s) die before the Testator or “renounce probate” (decides that they don’t want to be an executor). Executors can be beneficiaries under the Will and are normally family members, friends or a solicitor, accountant or bank.
Appointment of trustees Sometimes it will be desirable for the Will to create a “trust” if, for example, the Testator has young children who will not inherit the Testator’s estate until they reach a certain age. Where a trust is created the Testator would normally name the chosen trustee(s) in the Will and make provision for alternatives to be appointed should the first choice of trustee(s) die before him or her or is unable or unwilling to take on the role. Normally, the trustees are the same people as the executors.
Appointment of guardians If the Testator has young children they will normally appoint “guardians” to look after their children in the event of the parents' deaths before the children are 18 years old. Aain the Testator may make provision for an alternative guardian to be appointed should the first choice of guardian(s) die before them, or is unable or unwilling to take on the role.
Specific gifts If the Testator wishes to leave specific property or assets to specific people (“beneficiaries”) then details of such gifts and beneficiaries will be set out in the will (“legacies”). Beneficiaries may be specifically named or defined, for example, as the Testator’s “grandchildren”. When naming a class of beneficiaries such as grandchildren the Will may make provision for any grandchildren who are born after the Testator makes the Will. Sometimes a will will include a clause providing for the gift to take effect only if the beneficiary survives the Testator for a certain period of time, normally the period of one month. A will may also make provision for property or assets to be left to another beneficiary or beneficiaries in the event that the Testator’s first choice of beneficiary dies before him or her. A will may also impose a condition, for example, that a beneficiary can only inherit property or assets when they reach a certain age. Any conditions imposed must be reasonable and not contrary to public policy. If they are not then a Court may set aside any such bequest.
The residue Normally a will will include a clause to deal with the testator’s “residuary estate”. The residuary estate consists of any property or assets which the testator has not specifically left to his or her beneficiaries. Where the residuary estate is to be left to more than one person the will should state the proportions each beneficiary is to receive.
Funeral and burial arrangements A will may contain a provision setting out any wishes the Testator may have in relation to their funeral or the disposal of their body. Any such provisions will not be legally binding but are usually adhered to.
Testimonium A will should be signed by the Testator. Normally the following wording is used before the Testator’s signature:
“IN WITNESS whereof I have hereunto set my hand this ……….. day of ………….., yyyy”
This is known as a “testimonium clause”.
Attestation clause The Testator’s signature should be witnessed by two witnesses both present at the same time. Normally a Will includes what is known as an “attestation clause” to show that the Testator’s signature has been witnessed properly. The normal wording of an attestation clause is as follows:
“SIGNED by the above-named [testator/testatrix] [signature ] as [his/her] last Will in the presence of us both present at the same time who at [his/her] request and in [his/her] presence and in the presence of each other have signed our names below as witnesses:
[Signatures, addresses and descriptions of the two witnesses]”