FAQs

Here we have set out some frequently asked questions – and a few things you may not have thought of

Will FAQs

What if I don’t have a Will?

If you die without leaving a valid Will, then the law will determine who is to inherit your estate. Your estate would be said to be “intestate”, and the intestacy provisions of the Administration of Estates Act 1990 would direct who would receive your estate.

Who would be entitled to your estate would depend upon what relatives you left behind. It does not necessarily all go to your spouse, and it does not necessarily all go to your children. The 1990 Act provides a list of relatives (in a decreasing order of proximity) who may benefit. Briefly:

If you leave a surviving spouse but no children, then your spouse would inherit all of your estate.

If you leave no surviving spouse, but you do leave a child or children, then your child or children would inherit all of your estate (and if a child of yours has died before you, leaving a child or children of their own, they would step into their parent’s shoes).

If you leave a surviving spouse and a child or children then your estate would be divided. Your spouse would receive the first £250,000, your personal chattels and half of the remainder of your estate. The other half of the remainder of your estate would go to your children.

Beyond a spouse and children, there are further levels of family, who would then inherit. It can, however, be difficult tracing more distant relatives, causing additional cost to your estate.

If there are no relatives at all (as defined in the 1990 Act), then your estate would go to the Treasury.

What if I made a Will before I got Married?

In most cases, as a matter of law, marriage automatically revokes any previous Will you may have made. The exception is if you made a Will in contemplation of your impending marriage (although there are lots of requirements in order for this exception to apply). If you made a Will and later on got married, therefore, then you would likely now be “intestate”. The law revokes your previous Will because the law assumes that on your marriage your circumstances have probably changed and the law makes assumptions about what you would wish to happen to your estate.

If you have married, therefore, you should really make a new Will.

What if I made a Will but have since divorced?

If you made a Will but later get divorced, then the law provides that your Will will remain valid, but it will be read as if all references to your former spouse were omitted. This only applies, however, after your “Decree Absolute” has been issued – until then you are still married.

Depending on how your will was drafted, you may need to revisit what your Will provides. It may not now fully reflect what you would wish to happen to your estate, in your new circumstances. And if you subsequently remarry, then your remarriage would automatically revoke your earlier Will (see above).

What if I want to change my Will?

So long as you have testamentary capacity (that is, you still have the degree of mental capacity that the law requires for the making of a valid Will), then you can change your Will at any time. This can be done by making a new Will to replace the old one, or by making a Codicil (which is an Addendum to your existing Will, and which has to be executed in the same way as a Will).

It is sensible periodically to revisit what your Will says, to make sure that it still reflects what you would like to happen to your estate, and to take into account changes in circumstances.

Can I make my own Will?

Yes, you can, but… the old adage that Lawyers make more money from the Wills they don’t make, is absolutely true. Drafting a Will and executing it in accordance with the strict legal requirements, and making sure that everything is expressed unambiguously, is a skill. Advocates acquire that skill through long study and training and through honing their drafting ability through experience.

Your Will may be one of the single most important documents (for your loved ones) that you ever sign. A simple Will may only cost a few hundred pounds to be drafted by a qualified Advocate. We would never recommend that you draft your own Will. Should there subsequently be any dispute over the validity of the Will or over how it should be interpreted, the legal costs then involved may be very significant indeed, and disputes may come at a time when your loved ones are already grieving the loss of their loved one.

Are Will Writers Lawyers?

There are individuals and businesses that call themselves “Will Writers”. This is not the same thing as a “Lawyer”. There is no requirement for a “Will Writer” to be legally qualified as a lawyer. We would always recommend that you use a qualified advocate to draft your Will. In our firm the only people allowed to draft Wills for clients are fully qualified advocates.

What is Meant by Testamentary Capacity?

Testamentary capacity means the degree of mental capacity that the law requires a person to have in order to be able validly to make a Will. Capacity to make a Will is complex. A person may have reduced mental capacity but still have the necessary capacity to make a Will. In any case where there is any question over testamentary capacity, it is advisable to obtain a medical opinion to confirm testamentary capacity

What Should I Do With My Will?

Your Will is an important document. Most advocates will offer a service of keeping any Wills they have made, in safe-keeping for you. We have our own Wills Safe, in which we are happy to keep any Wills which we have prepared. You should keep a copy along with a note to say where the original is held. Occasionally relatives may not know where a Will is being kept (or whether any Will was ever made). The Isle of Man Law Society accordingly can include a Wills Search in its weekly email sent to advocates firms, which may help to locate a missing Will or to confirm that there is no Will to be found.