Debunking Common Myths about Wills

We know that making a Will can seem daunting. What can add to the concerns are the various myths that surround Will making.

There’s no point in my making a Will.   I divorced a long time ago.   I do have two children from my previous marriage but I have now remarried – so everything will go to my wife now anyway.

Not necessarily.  When someone dies without leaving a valid Will, a set of laws called ‘the Intestacy Rules’ govern who is entitled to share in the estate.  The rules are very complex.


If, for example, your estate is worth more than £250,000.00 then under the Intestacy Rules your wife will keep all the personal possessions and assets including any property up to the value of £250,000.00.  Your wife will then get ½ of the remainder of the estate with your children taking the remaining ½ equally between them.   Your wife’s occupancy of your home could be put in jeopardy if your home is worth more than £250,000.


As you have been married before, there is always a careful balance to be struck between dividing assets between your children and your wife.  Relying on the Intestacy Rules is exceptionally risky and rarely produces the right result.  Making a Will is essential in these circumstances.


My Father has been diagnosed with Dementia so he cannot make a Will now.

That may not be the case.  A diagnosis of Dementia does not necessarily mean that he cannot make a Will – particularly if he is in the early stages.    Providing he meets the criteria to make a Will this may still be possible.   A medical report may be required.   This is a technical area of law and it is essential that your father gets legal advice as soon as possible.


Will I avoid Probate by making a Will?

Not necessarily.  Probate is a document issued by the Probate Registry  to the person nominated as Executor under the Will.  The Executor makes an application to the Probate Registry and once this is Granted he or she will be able to close down the deceased’s bank accounts, sell their investments and deal with their property etc.   In a small number of cases Probate is not necessary – for example if the deceased has minimal funds in an account his bank might be prepared to release monies without sight of Probate.  In most cases it will be required, particularly if the deceased owns property (his home) or has any significant savings or investments.  Obtaining probate and administering an estate is laden with procedure and rules.  Speak to your trusted lawyer who will be able to guide you through this process.


I have named my daughter as a beneficiary in my Will.  Is she barred from being an Executor?

This is one of the most commonly asked questions.  The simple answer is no, she is not barred from being an Executor.   It is absolutely fine for an Executor to also be a beneficiary.   What she must not be is a witness to your Will as this will void her appointment as your Executor and will also void your gift to her as a beneficiary!


Is there a sum of money I can leave to someone in my Will to prevent them from making a claim on my estate?

There is no “magic” sum of money.  Anyone can challenge the provisions of a Will but must have grounds for doing so.  You can leave your estate as you wish but if, by doing so, you would be leaving a relative or dependent out of your Will it is important that you seek legal advice.


I can make a Will without seeking legal advice

It is possible to make a ‘homemade’ Will.  This is not a myth!  The law surrounding Wills, however, is surprisingly complex and few people who opt for the DIY route get it right.  Unfortunately the errors in these Wills are usually discovered after that person has died and at that point it can be too late to put the matter right.  The time and cost of dealing with faulty Wills almost always exceeds the initial cost saving.   Seeking legal advice at the point the Will is made is essential.


As part of their commitment to excellence in this field, Donnelly and Elliott Solicitors are proud to be accredited members of the Law Society’s Wills & Inheritance Quality Scheme




Date: July 2017

Donnelly & Elliott Limited Solicitors|38 Stoke Road Gosport Hampshire PO12 1JG |02392 505 500| Note: The above information is for general guidance and in part forms the opinion of the author. It is based on the law as at the date of this note. It should not be relied upon in part or in whole as a substitute for independent legal advice.  If any of the issues raised in this article effect you please contact a member of our team.