Why wills matter?

Chris Thorpe outlines why having an up-to-date will is highly advisable. It may seem that a will is not something that needs worrying about whilst one is alive and well. However, upon death it’s too late to say what will happen to your assets. A will is a document which states the wishes with respect to the assets within the estate; an executor is appointed who takes legal ownership
of the estate and distributes assets according to the provisions of the will.

There are few regulations surrounding the composition of a will, but it must be in writing, signed by the testator, who is over 18 years of age and of sound mind, and witnessed by two individuals who are not beneficiaries. These criteria are laid down within the Wills Act 1837, but with such relaxed rules comes the danger of confusion; the shortest will ever to pass probate in England was in Thorn v Dickens in 1906 where the will simply stated: ‘All to mother’.

Whilst that sounds straightforward enough, the testator had a habit of calling his wife ‘mother’ and it was held that she was indeed the intended beneficiary. In 2025, the Law Commission laid down several recommendations to tighten up regulation of wills, allowing for greater discretion for courts to consider the testator’s intention, lowering the age to 16, revoking the rule that a will is invalid once someone marries, and making it easier for the courts to consider the risk of undue influence. Concerns frequently surround the risks of undue influence on the testator to benefit certain individuals over others, often a potential means of challenging a will.

Challenges to wills

Another concern, besides undue influence, is potential claims from beneficiaries who have not received what they expected. Challenging the will on a technicality or grounds that the testator was unduly influenced or of unsound mind may be joined by a claim under the Inheritance (Provision for Family and Dependants) Act 1975, which allows for reasonable financial provision for those individuals who were maintained by the deceased prior to death – usually (ex-)spouse, children and those who cohabited with the deceased for at least two years.

A claim under the 1975 Act needs to be made within six months of probate. Another potential issue is if, in life, the deceased had promised land or assets to one beneficiary, but they eventually bequeath it to someone else. If the promised beneficiary relies upon that promise to their detriment, then under the equitable principle of proprietary estoppel, the actual beneficiary may end up holding the asset as constructive trustee for the promised one.

Types of bequests

Within the will, there are several types of bequests. A specific bequest is one of a specific item (if that item no longer exists at death, then the bequest is ‘adeemed’); a general (pecuniary) bequest is where the beneficiary is to be given a sum of money from whatever source, with a demonstrative bequest being similar but from a specific source. Whatever is left in the estate after these legacies goes to the residuary beneficiaries.

The residuary beneficiary is only taxed on income they actually receive, whereas income arising from specific bequests is taxable upon the beneficiary from the date of the testator’s death, with the executor paying income tax at the basic rate on their behalf until it is distributed. Assets which are jointly owned automatically go to the surviving co-owner and cannot be bequeathed through the will.

Intestacy

If there is no will, then the deceased dies ‘intestate’; an administrator (rather than executor) is appointed by the court to distribute the assets according to a fixed schedule, which might be contrary to the deceased’s wishes.

Practical tip

The best advice is to have a will drawn up simply to override the intestacy provisions, and review it regularly to ensure it still represents one’s wishes. If a bequest might lead to potential challenges, it is advisable to include a full explanation within the will (or a letter of wishes) justifying the choice and pre-empting any capacity or undue influence challenges.

Disclaimer: The information provided on AccountingFirms.co.uk is for informational purposes only and should not be considered as financial advice. Always consult with a professional accountant to ensure compliance with UK laws and regulations.