The risks of using an unqualified will writer

Making a will is one of the most important steps you can take to protect your family and ensure your wishes are carried out after your death. Yet the quality of the will itself is vital.  A document that is poorly drafted or unclear can create confusion, spark a dispute, and leave loved ones facing unnecessary stress and expense.

Recent court cases, including Tedford v Clarke & Ors [2025] EWHC 816 (Ch), have highlighted the dangers of relying on an unqualified will writer, and this case shows why expert legal advice is so important.

As Lucy Brown, head of the private client team, explains: ‘When you instruct a solicitor to draft your will, you know they are properly trained, regulated, and insured. With an unqualified will writer, you simply do not have those protections – and unfortunately, as the Tedford case shows, the consequences can be very damaging for families.’

No formal qualification is needed to prepare a will – you can even draft one yourself. However, wills are governed by a complex body of legislation and case law, and what seems straightforward can easily give rise to hidden pitfalls, disputes, or unintended tax consequences.

Some will-writing services are offered by individuals who are not solicitors and who may not be supervised by one. Such will writers sometimes rely on template clauses and may have limited training within a narrow field. Unlike solicitors, they are not necessarily regulated by a professional body and may not be subject to an independent complaints process if things go wrong.

While some will writers do carry professional indemnity insurance, this is not always the case which means there is no guarantee of financial protection if mistakes are made. The key difference is accountability: with a solicitor, there is always the reassurance of professional oversight, insurance, and a regulator to turn to if problems emerge.

The Tedford case; a judicial warning

In Tedford v Clarke & Ors the High Court had to examine a will, which contained a series of critical errors that created ambiguity and omissions, in order to determine how the estate should be distributed.

Numerous clauses in the will were unclear, for example:

  • The testator wanted to leave her savings account with Abbey National Bank to her siblings. However, Abbey National Bank had become Santander before the will was signed, which meant the court had to determine if the gift failed or whether the Santander account was included.
  • The testator held several savings accounts, but the will only referred to the one account with Abbey National Bank. So, the court had to determine if the money held in only one of the savings accounts would pass to her siblings or whether the clause included all of her savings accounts.
  • There was ambiguity around the use of the word ‘surviving’ in the will and some of the will maker’s siblings had already died (before the testator) leaving their children, so the court had to decide whether those children should inherit in their parents’ place.
  • The will also included a general gift of ‘my estate’ to a named beneficiary, even though specific assets had already been given elsewhere. The court had to decide whether ‘my estate’ should be given its ordinary meaning (all the testator’s property) or a narrower meaning (to take into account the gift of specific assets).

Because of the lack of clarity, the family had to bring a Part 8 claim asking the court to interpret the will. The court examined evidence to try to discern the testator’s likely intentions, but this came at significant financial and emotional cost to the family.

The judge noted that the errors had directly caused the dispute, saying the will was prepared by an ‘apparently unqualified person holding himself out as a will writer perhaps for money’’ and that this ‘case demonstrates the perils of trying to save expense by using the services of unqualified persons to write wills’.

The Tedford case illustrates the dangers of cutting corners in will preparation. A will is not just a formality: it is a legally binding document that demands legal expertise, careful structuring and precise wording.

The risks in practice

The Tedford case shows how easily ambiguity can creep into a poorly drafted will. When instructions are not captured clearly, or when legal formalities are overlooked, your wishes may not be fulfilled as you intended. Sometimes a will can even be declared invalid, leaving your estate to be distributed under the intestacy rules rather than in line with your wishes.

Unclear wording also opens the door to a family dispute. Instead of a smooth process at an already difficult time, relatives may find themselves drawn into disagreements that escalate into costly and stressful litigation. At a moment when families need certainty and support, ambiguity in a will can make matters far worse.

There are financial consequences too. Without proper legal advice, important tax planning opportunities can easily be missed. This can leave families with a larger inheritance tax bill than necessary, eroding the value of the estate and depriving loved ones of assets that could have been preserved.

Perhaps the most troubling risk can be the lack of accountability. A solicitor is regulated and insured, which means there are safeguards in place if problems occur. For an unqualified will writer, there may be no independent body to complain to and no guarantee that compensation will be available. You may be left exposed at precisely the moment when protection is most needed.

Why a solicitor makes the difference

Choosing a solicitor ensures that your will is drafted with both legal precision, experience and practical foresight. A solicitor is trained to spot potential issues, whether that involves family circumstances that could cause conflict, vulnerable beneficiaries who need special protection, pitfalls to avoid or tax considerations that might otherwise be overlooked.

Every solicitor is also bound by professional obligations, regulated by the Solicitors Regulation Authority, and insured to protect clients if problems do arise. As part of these obligations, solicitors must keep their knowledge up to date through continuing professional development (CPD). This means they are required to maintain and refresh their legal skills, including staying aware of developments in case law and legislation, so that clients can be advised with confidence that the guidance reflects current law and best practice.

This combination of expertise, accountability, and protection gives you confidence that your wishes will be respected and your family safeguarded.

A well-drafted will is not just about dividing assets; it is about minimising the risk of dispute, ensuring tax efficiency, and providing peace of mind. By choosing a solicitor, you are making sure your estate is handled smoothly and in line with your intentions.

How we can help

Our private client team is experienced in advising on all aspects of wills and estate planning. We take the time to understand your family circumstances and prepare a will that reflects your wishes clearly and effectively. We ensure that your estate is structured in a way that reduces risk, minimises the chance of disputes, and provides certainty for those you leave behind. We can also support your executors and family when the time comes, helping them navigate the process with confidence and clarity.

For expert advice about making or updating your will, contact Lucy Brown in our private client team on 0191 297 0011 or by email at whitley.bay@kiddspoorlaw.com.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

Later life planning for and protecting children with needs

Later life planning for and protecting children with needs

When thinking about your will and estate planning, you need to consider not only how much you leave to your loved ones, but how and when they will receive it. This becomes especially important where children or other beneficiaries may be vulnerable – for example, due to illness, disability, addiction, or difficulties managing money.  Without proper planning, an inheritance intended to provide security could be spent too quickly or inappropriately.

‘Parents sometimes come to us unsure how best to protect a child who may not be ready, or able, to manage a lump sum inheritance,’ explains Lucy Brown, head of the private client team. ‘The right legal structures can make all the difference, ensuring your wishes are carried out and your loved one’s needs are met in a safe and sustainable way.’

Understanding a vulnerable beneficiary

In an estate planning context, a vulnerable beneficiary might be someone who has long-term health or care needs, struggles with an addiction such as gambling or substance abuse, lives with mental health difficulties, or has a history of poor money management and financial exploitation.

Recognising these vulnerabilities at the planning stage makes it possible to put the right safeguards in place to protect both the individual and their inheritance. One of the most effective ways of doing this is through the use of a discretionary trust or a vulnerable person’s trust, which can help ensure that family wealth is managed responsibly and securely for the future.

Discretionary trusts

A discretionary trust allows you to place assets under the control of chosen trustees, who then decide how and when funds are distributed. This flexibility can be invaluable where a beneficiary’s circumstances may change over time or where giving them direct control could be harmful.

One of the main attractions of a discretionary trust is the flexibility it offers. Trustees are able to adapt the way funds are distributed to reflect the changing circumstances and needs of the beneficiaries, rather than being bound by rigid rules. At the same time, the trust structure provides an important layer of protection: assets can be kept safe from the reach of creditors, the impact of a divorce settlement, or the consequences of poor financial decisions by beneficiaries.

Discretionary trusts also open up valuable tax planning opportunities, as trustees can exercise control over how income and capital gains are allocated, helping to manage the overall tax position of the trust and its beneficiaries.

By way of example, a parent might set up a discretionary trust for a child with a gambling addiction.  Trustees could pay rent directly to a landlord, cover living expenses, or fund education costs without ever handing over a lump sum that could be lost.

Vulnerable person’s trust

A vulnerable person’s trust – also known as a disabled person’s trust – works similarly to a discretionary trust in that trustees have the flexibility to decide how and when to use income and capital for the beneficiary. What sets this type of trust apart, however, is that it is specifically designed to benefit a ‘disabled person’ and can offer significantly more favourable tax treatment across inheritance tax, income tax, and capital gains tax.

For a trust to qualify as a disabled person’s trust, the primary beneficiary must meet one of the following criteria: they are incapable of managing their property or financial affairs due to a mental disorder defined in the Mental Health Act 1983 (check with a medical professional that it is covered) or they receive certain disability-related benefits.

Once the trust is established correctly and meets HMRC’s conditions (including making a vulnerable person’s election), trust income and gains can be taxed as if they belong personally to the disabled beneficiary. As a result, the trust may benefit from their available personal tax allowances and lower rates.

However, eligibility is narrower than for discretionary trusts, so professional advice is essential to ensure correct set up and ongoing compliance.

Controlling access and protecting against risks

One of the biggest advantages of using a trust, whether discretionary or a vulnerable person’s trust, is that it allows you to prevent a lump sum from being misused or causing harm. Trustees can, for example, delay access until a certain age, or provide funds in stages to encourage financial maturity. They can also restrict how capital is applied, ensuring that it is used for essential purposes such as education, housing, or medical costs. In addition, the trust structure itself provides valuable protection, shielding family assets from creditors, financial exploitation, or the effects of a relationship breakdown.

Choosing trustees

The success of any trust depends heavily on the people appointed to run it. Trustees should be individuals you trust implicitly, with the skills, judgement, and willingness to make sometimes difficult decisions. Many clients choose a combination of family members who understand the beneficiary’s needs and a professional trustee, who brings legal and financial expertise. This balance can help ensure decisions are both compassionate and practical.

Letters of wishes

Alongside the trust deed itself, a detailed letter of wishes is strongly recommended. While not legally binding, it acts as a vital guide for your trustees in setting out how you would like the trust to be managed in practice. This might include prioritising housing or healthcare needs, discouraging cash payments except in limited circumstances, or making clear how different beneficiaries should be supported. A well drafted letter of wishes can give trustees clarity and reduce the risk of family disagreements later on.

Balancing fairness for the wider family

Estate planning should balance the needs of the vulnerable beneficiary with fairness to other children or dependants. This often involves careful drafting and clear communication to avoid misunderstandings or disputes after your death. Trust structures can help achieve this by providing for the vulnerable beneficiary during their lifetime, while preserving capital for the wider family in the future.

How we can help

Our experienced private client team can:

  • advise on suitable trust structures, including discretionary trusts and vulnerable person’s trusts;
  • draft wills and letters of wishes tailored to your family’s circumstances;
  • support trustees with the ongoing management of trusts; and
  • help ensure vulnerable beneficiaries are cared for without jeopardising their financial security.

We understand the sensitivity of planning for a loved one’s future care and wellbeing. With the right advice, you can make sure your estate provides lasting support in the way you intended.

For expert advice about making or updating your will to protect vulnerable beneficiaries, contact Lucy Brown in our private client team on 0191 297 0011 or via email at whitley.bay@kiddspoorlaw.com

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

Probate: dealing with a mortgaged property during estate administration

When someone dies leaving property behind, the responsibility for dealing with it falls to the executors or administrators. But what happens if there is still a mortgage to pay or if the deceased had taken out an equity release loan? Navigating these issues requires particular care, particularly when family members are grieving and may be unsure of their legal duties.

Getting this right is crucial, not just for executors, but also for beneficiaries who may be relying on the sale of the property as part of their inheritance.

‘Some clients are surprised to learn that mortgages do not simply disappear when someone dies,’ comments Lucy Brown, Head of Private Client. ‘Whether it is a standard repayment mortgage or a more complex equity release scheme, the personal representatives need to act quickly and carefully to protect the estate and avoid unnecessary interest or penalties.’

Mortgages and probate – the basics

If the deceased owned a property with a mortgage, the loan does not end on death. It becomes a liability of the estate. This means the executor or administrator must ensure the lender continues to receive payments – or agrees to hold off receiving payments – until the property is sold or the estate has sufficient funds to repay the debt.

In most cases, the mortgage will be repaid from the proceeds of sale. However, where beneficiaries want to keep the property, they may need to remortgage in their own name or repay the loan using other assets once a grant of probate has been obtained.

It is essential to notify the mortgage lender promptly after the death, and to obtain up-to-date redemption figures to calculate what is owed.  Accurate knowledge of the redemption figure must be maintained throughout the administration, particularly where a sale or transfer of the property is imminent.

Equity release – what makes it different?

Equity release loans are often more complex. These arrangements allow homeowners over a certain age to borrow money against the value of their home, and the loan will usually be repaid from the sale of the property after death.

Interest typically rolls up over time, meaning the amount owed can increase substantially. Some plans include early repayment charges or conditions affecting when and how the property must be sold.

Executors must liaise with the equity release provider, understand the terms of the loan, and check whether there are deadlines or restrictions on selling the property. Professional advice is often needed to avoid breaching the terms of the loan and incurring extra costs.

Valuing and selling the property

One of the first steps in the probate process is obtaining a formal valuation of the property. Even if no tax is ultimately payable, an accurate open market valuation as at the date of death is still required. It is also important to obtain the mortgage balance on the date of death, as this is treated as a liability and deducted from the estate for inheritance tax purposes.

If the property is to be sold, executors must ensure it is secure, insured, and well maintained.

This includes:

  • arranging vacant property insurance, if required;
  • securing keys and alarm codes;
  • clearing out personal possessions;
  • dealing with utility providers and local council tax; and
  • selecting a reliable estate agent and solicitor to handle the sale.

Delays in selling can lead to increased mortgage interest costs, and this can affect the timing of distributions to beneficiaries.

Practical issues for executors

With a mortgaged property, executors must:

  • identify all charges registered against the property;
  • understand whether the estate can afford to keep the home, or if it must be sold;
  • manage communications with lenders and comply with any deadlines;
  • ensure debts are paid in the correct legal order; and
  • consider the wishes of beneficiaries, especially where there are emotional ties to the property.

These duties can be time-consuming and legally sensitive. Executors are personally responsible for getting it right and may be held liable if they make mistakes.

Impact on beneficiaries

The existence of a mortgage or equity release plan will reduce the amount of money available for beneficiaries. In some cases, a property expected to be worth a substantial sum may be heavily encumbered by debt, leading to disappointment or even a dispute.

If a beneficiary hoped to inherit the home, they may need to explore whether they can afford to take over the loan or refinance. In family situations, especially between siblings, this can lead to disagreements that are difficult to resolve without legal input.

Clear communication, transparency, and good financial advice are key to avoiding problems.

How we can help

Dealing with a property after someone dies requires careful attention, particularly where mortgages or equity release plans are involved. Our experienced team can:

  • advise you on your duties and legal responsibilities;
  • liaise with mortgage and equity release providers;
  • obtain property valuations for inheritance tax and probate;
  • guide you through the sale or transfer process;
  • help resolve disputes between beneficiaries; and
  • ensure the estate is administered efficiently and correctly.

We understand the emotional and financial pressures involved. With practical advice and expert legal support, we will help you navigate this process with confidence and clarity.

For expert advice about obtaining probate and the administration of an estate, including dealing with any mortgaged property, contact Lucy Brown in our private client team on 0191 297 0011 or via email at whitley.bay@kiddspoorlaw.com.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

Making a will – careful planning needed with estranged relatives

Family relationships can be complicated, and estrangement is sadly more common than many realise. Whether the breakdown is the result of a long-standing family rift, a more recent dispute, or simply growing apart over time, such estrangements can have significant legal consequences – particularly when it comes to making or updating your will.

It is a common misconception that you can leave your estate to whomever you choose, without consequences. While English law does support testamentary freedom, that freedom is not absolute. If a close family member, such as an estranged child or spouse, is excluded or left with little provision, they may still be able to challenge your will after your death.

‘When someone comes to us to make a will, it is important to understand their individual circumstances and objectives. If a close relative is estranged, we treat that as a clear indicator to take additional care in drafting their will and supporting documentation,’ explains Lucy Brown, head of the private client team. ‘With the right approach, you can ensure your wishes are carried out while minimising the risk of a dispute or litigation for those you leave behind.’

Why estrangement matters in will planning

Where there is an estrangement, emotions often run high – both during life and after death. A will that excludes, or provides only minimal provision for, a close family member is more likely to be challenged, particularly under the Inheritance (Provision for Family and Dependants) Act 1975.

This law allows certain individuals to apply to the court for reasonable financial provision from your estate, regardless of what your will says. Those eligible to claim include spouses, civil partners, cohabiting partners, children (including adult children), and others who were financially dependent on you at the time of your death.

Estranged adult children are increasingly bringing claims against their parents’ estates, especially when the will appears to favour siblings or charities. For example, in the case of Ilott v Mitson, a disinherited daughter succeeded in her claim for provision despite a decades-long estrangement, highlighting just how complex such claims can be.

Whatever the outcome, your executors would need to deal with the claim and related costs, and this could impact on what other relatives eventually receive.

Recording your wishes – and your reasoning

If you intend to exclude someone from your will, or limit what they are to receive, it is not enough to simply state this in the will itself. To reduce the risk of a successful challenge, your intentions and reasoning should be clearly documented.

A supporting letter of wishes is often a vital tool. This is a confidential document (not legally binding) that can be used to explain:

  • the nature of your relationship with the estranged person;
  • the history of the estrangement, including when and how it arose;
  • your reasons for excluding or limiting provision for them;
  • any financial support already given during your lifetime; and
  • confirmation that you have considered their circumstances but still believe your decision is appropriate.

The letter should be signed and dated, ideally with legal advice. It can be a crucial piece of evidence if your will is ever contested, helping your executors or the court understand your wishes and the rationale behind them.

In particularly sensitive cases, we may also advise making a formal written statement or statutory declaration, prepared with the benefit of legal advice and retained on file in support of your testamentary choices.

Using discretionary trusts and other strategies

In some cases, it may be possible to structure your will to help reduce the risk of a successful claim while still reflecting your wishes.

A common approach is the use of a discretionary trust. Rather than leaving fixed amounts to individuals, you name a group of potential beneficiaries – which may or may not include the estranged person – and give your trustees the discretion to decide who receives what, when, and how much.

This structure offers:

  • flexibility in managing complex family dynamics;
  • greater control through your chosen trustees; and
  • a degree of protection, as the estranged person is not automatically excluded and has no fixed entitlement.

A separate letter of wishes can guide your trustees on how you would like the trust to be administered.

However, it is important to understand that a discretionary trust within your will still forms part of your estate. This means it remains open to challenge under the Inheritance (Provision for Family and Dependants) Act 1975, just like any other part of your will.

Lifetime planning to reduce risk

To reduce the likelihood of a successful claim – or to remove certain assets from the reach of a claim entirely – lifetime planning may be advisable. By making arrangements while you are alive, you may be able to reduce the size of your estate and limit the assets available for redistribution after your death.

Examples include:

  • making lifetime gifts to those you wish to benefit most;
  • setting up a lifetime trust to hold assets outside your estate;
  • using life insurance policies written in trust, which pay out directly to beneficiaries; or
  • restructuring property ownership to avoid unintended consequences.

These approaches can offer additional security – but they must be handled with care. Under legislation, the court has the power to treat certain lifetime transfers or trusts as part of the estate when assessing a claim. This means that even assets given away or settled during your lifetime could, in some cases, be brought back into account if the court believes they were transferred to avoid a claim or defeat reasonable financial provision.

Each situation is unique and requires tailored legal advice.

Avoiding conflict and minimising risk

No will is ever completely safe from the risk of a challenge, particularly where there are eligible individuals who may bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975. However, there are practical steps you can take to reduce the chances of a successful challenge and protect your executors and beneficiaries from costly litigation.  These include:

  • obtaining a full assessment of your legal position before drafting or amending your will;
  • having your testamentary capacity assessed and documented, especially if the estrangement or your decision may be controversial;
  • ensuring your will is correctly signed and witnessed;
  • appointing professional or impartial executors, particularly if there are likely to be disputes within the family; and
  • communicating your intentions to your chosen executors in advance, so they are prepared to manage any fallout after your death.

Regular reviews of your will are essential. If your relationship with an estranged relative changes, or if their personal circumstances shift (such as becoming financially dependent), you may need to update your will and any supporting documents. In particular, the letter of wishes should be reviewed and amended as needed. If they contain outdated or incorrect details at the time of your death, they can undermine your intentions and even strengthen a challenge, becoming a double-edged sword rather than a protective measure.

How we can help

Planning your will when you are estranged from a family member requires thoughtful legal advice, careful drafting, and attention to detail. Our experienced team can help you:

  • draft a will that reflects your wishes while minimising legal risk;
  • prepare supporting documents that explain and justify your decisions;
  • advise on the use of discretionary trusts or lifetime planning options;
  • provide clear, confidential guidance tailored to your family situation; and
  • support your executors in defending any future claim if needed.

We regularly assist clients in navigating the difficult intersection of family conflict and estate planning. With sensitivity and expertise, we can help you achieve peace of mind knowing that your affairs are in order.

For expert advice about making or updating your will, contact Lucy Brown in our private client team on 0191 297 0011 or via email at whitley.bay@kiddspoorlaw.com.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

The role of a Health and Welfare LPA when making decisions for someone in hospital

When a loved one is admitted to hospital and lacks mental capacity to make decisions for themselves, having a Health and Welfare Lasting Power of Attorney (LPA) in place can be vital. But even if you are named as their attorney, you may be unsure how and when to use that authority or how it interacts with the views of doctors or next of kin.

‘Being appointed under a Health and Welfare LPA gives you important legal authority, but many attorneys are unsure how far that power goes, especially in a medical setting,’ explains Lucy Brown, head of the private client team. ‘If your views about treatment or discharge differ from medical staff or family members, it is essential to understand how to assert your role in a constructive and lawful way.’

What is your role under a Health and Welfare LPA?

A Health and Welfare LPA allows the donor (the person who made the LPA) to appoint one or more people to make decisions about their personal welfare if they lose mental capacity. This includes decisions about medical treatment, care arrangements, and daily routines. As an attorney, you must act in the donor’s best interests, considering their wishes and values – even if they can no longer express them.

Although most attorneys are aware they hold this power, there can be uncertainty about when and how to use it in practice, especially in a hospital setting.

Practical issues for attorneys

If the donor is admitted to hospital and you need to act, you may be wondering:

  • Do I need to show the LPA to hospital staff?

Yes. A certified copy of the registered LPA should be provided to the hospital so they can note it on the medical records. This helps ensure that your authority is recognised, and that decisions are not made without your involvement.

  • Should the LPA be recorded on hospital systems?

Again, yes. Ask for the LPA to be formally recorded in the patient’s medical notes, especially in case of staff changes or emergency treatment. This helps maintain continuity and avoids confusion.

  • What if there is more than one attorney?

Where more than one attorney has been appointed under a Health and Welfare LPA, it is crucial to understand how they must act – especially in hospital settings where decisions often need to be made quickly. If attorneys are appointed ‘jointly and severally’ any one of them can make decisions independently, which can help avoid delays. However, if they are appointed ‘jointly’ all attorneys must agree on every decision, which can be more time-consuming and may lead to deadlock if views differ.

This distinction is vital in a hospital environment, where medical teams may need prompt consent for treatment, or urgent input about care preferences. If there is uncertainty about how the attorneys are authorised to act, this can result in confusion, delays, or even exclusion from the decision-making process.

Hospital treatment decisions

Health and Welfare LPAs are specifically designed for circumstances like hospital admission, when your loved one is unwell and no longer able to make decisions for themselves. If you are their appointed attorney, and the LPA includes authority to make decisions about life-sustaining treatment, you may be called upon to:

  • give or refuse consent to medical treatment;
  • agree to or object to proposed surgery or medication;
  • speak directly with doctors and healthcare teams about care plans; or
  • make sure that decisions reflect what your loved one would have wanted by drawing on past conversations, written wishes, or their known values and beliefs.

In these moments, doctors must involve you in decision-making where you have authority under the LPA. However, they may still challenge your decision if they believe it goes against their patient’s best interests. That is why maintaining open and respectful communication with medical staff is essential. You are there to represent the person’s voice when they cannot speak for themself.

Discharge and care planning

Once your loved one’s hospital treatment is coming to an end, your role as an attorney under a Health and Welfare LPA often becomes even more important. Discharge planning is rarely straightforward, and you may be asked to help shape what happens next, especially if they cannot make those decisions themselves. As their attorney, you will be expected to work with medical and social care teams to ensure that any ongoing care reflects your loved one’s needs, preferences, and best interests.

This can involve some difficult decisions, and it is natural to have questions, such as:

  • can they return home safely with the right support in place?
  • is a move into a care home the most appropriate option?
  • what help will they need to ensure continuity of care after leaving hospital?

If you believe the donor strongly wished to return home, but this conflicts with the hospital discharge team’s view, you can challenge the proposed care plan. If necessary, legal advice may help assert your rights or explore alternative discharge arrangements.

What if there is a disagreement?

Should jointly appointed attorneys disagree on a particular decision, the best course of action is to try to resolve matters sensibly through discussion and mediation. If this proves impossible, the Court of Protection may need to be involved.

Other complex situations can also arise during or after a hospital stay, particularly where the person’s care needs are significant or where there is disagreement about the best course of action. These might include:

  • a dispute about whether placing your loved one in a care home without their consent amounts to a deprivation of liberty, which may require formal authorisation under the law;
  • a safeguarding referral being triggered by concerns around the proposed discharge arrangements, particularly if professionals believe that returning home may not be safe; or
  • tension or pressure from other family members or professionals who disagree with the decisions you are making as an attorney, even if you are acting in line with what the donor would have wanted.

In such emotionally charged circumstances like these, seeking legal advice can help you understand your position, assert your authority as an attorney, and ensure that decisions are lawful and genuinely reflect the previously expressed wishes and rights of your loved one. In some cases, you may also need to involve the Office of the Public Guardian or the Court of Protection to resolve disputes or clarify legal boundaries.

Common misconceptions about LPAs

Many families assume that ‘next of kin’ have automatic rights to make medical decisions. In fact, unless an LPA is in place, doctors will make decisions based on what they consider to be in the patient’s best interests, which may or may not align with the family’s views.

Without a Health and Welfare LPA:

  • family members cannot demand or refuse treatment on the patient’s behalf;
  • care decisions are made by professionals, not relatives; and
  • there may be no formal advocate to speak for the patient’s wishes.

When to involve the Office of the Public Guardian (OPG)

The OPG oversees the conduct of attorneys and can be contacted if:

  • you believe another attorney is acting improperly;
  • professionals are refusing to recognise your LPA authority; or
  • the donor’s best interests are not being respected.

In some cases, you may need to apply to the Court of Protection for a decision or declaration, particularly if there is disagreement over treatment or care.

How we can help

Our experienced team can help you:

  • understand your role and rights as a health and welfare attorney;
  • ensure the LPA is registered and properly recognised by medical professionals;
  • advise on disputes with medical teams or co-attorneys;
  • challenge care decisions or discharge plans that conflict with the donor’s wishes; and
  • apply to the Court of Protection if necessary.

For expert advice on using a Health and Welfare LPA in a hospital situation, contact Lucy Brown in our private client team on 0191 297 0011 or via email at whitley.bay@kiddspoorlaw.com.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

Operating or winding up a business during probate

If you are an executor to someone who owned a business, it is vital to understand what can and cannot be done to ensure compliance with legal requirements and to protect the business’s value after the owner has died. Engaging a solicitor promptly will make navigating this complex process much smoother, ensuring that the business operates or winds up effectively and in line with the deceased’s wishes.

‘Administering an estate is always a challenging process, but when a business is involved, the complexities multiply,’ explains Lucy Brown, a head of the private client team. ‘Without the right legal guidance, executors and families may struggle to navigate business operations, tax liabilities, and succession planning. Seeking expert advice early can help protect the business’s value and ensure a smooth transition.’

What happens to a business during probate?

When a business owner dies, their share of the business ordinarily forms part of their estate and must be administered in accordance with their will or the rules of intestacy. If the business is a sole proprietorship, it may cease trading immediately unless arrangements are in place for its continuation. For partnerships and limited companies, succession planning, shareholder agreements, and company articles will dictate what happens next.

What happens to a business during the probate process will depend on its structure:

  • Sole proprietorship: a sole trader’s business ceases to exist upon death. The estate must decide whether to sell the assets or wind it up. If continuity is desired, new ownership arrangements must be made.
  • Partnerships: if the deceased was in a partnership or limited liability partnership (LLP), the partnership agreement will dictate what happens next. Some agreements allow for business continuity, while others may require dissolution.
  • Limited companies: a limited company has a separate legal identity and can continue operating. The deceased’s shares in the company form part of their estate and will be passed on according to their will or intestacy rules.

Executors or administrators must assess the business’s financial position carefully to determine its ongoing viability. Obtaining professional advice will be essential to ensure that all aspects of the business’s overall financial position are thoroughly evaluated.

In addition, it is necessary to engage accountants promptly to value the business for inheritance tax purposes – especially given the strict deadlines for submitting documents to HMRC.   The possibility of obtaining business property relief (BPR) should be considered and, if the business qualifies, appropriate steps must be taken to apply for this relief on the relevant inheritance tax forms, potentially reducing the estate’s overall tax burden.

Where necessary, we will liaise with accountants and tax advisors to ensure financial and tax matters are handled effectively and in compliance with legal requirements.

Operating a business during probate

In many cases, a business can continue to operate during probate, but this depends on the business structure and the authority given to executors or surviving partners. Executors may need to:

  • secure clear authority to run the business; either as provided in the will or through an agreement with the beneficiaries. Failure to do so may lead to complications, including potential personal repercussions against the executors if actions are later challenged;
  • manage operational aspects: oversee payroll, contracts, and supplier relationships to maintain operational stability. Effective management helps avoid financial losses or contractual disputes;
  • address tax implications: ensure compliance with relevant business legislation and tax requirements. Lapses in this area could result in penalties or additional liabilities; and
  • engage professional advisors: work with accountants, legal professionals, and other advisors to maintain the business’s value until probate is granted and ownership is transferred. This not only helps secure the estate’s interests but also reduces the risk of personal liability by ensuring all actions are legally sound.

Failing to take these appropriate steps can result in financial loss, contractual breaches, or disputes among beneficiaries. Additionally, if the business has outstanding debts, creditors may take action, potentially holding executors personally liable for any mismanagement, thereby adding further risk, complexity and costs to the probate process.

Winding up a business during probate

If the deceased’s wishes or its financial circumstances dictate that the business should be wound up, the executors will need to:

  • settle outstanding debts and liabilities;
  • inform employees and comply with employment law obligations, including redundancy rights;
  • liquidate assets and distribute proceeds to beneficiaries; and
  • deregister the business with appropriate authorities and regulatory bodies.

This process must be handled carefully to avoid legal claims, tax penalties, or unnecessary financial losses. Additionally, if the business was a partnership, LLP or limited company, proper dissolution procedures must be followed to ensure compliance with legal requirements.

How we can help

Our expert solicitors can:

  • advise on business continuity and succession planning;
  • assist executors in obtaining the necessary legal authority;
  • navigate tax and regulatory obligations to protect business value;
  • facilitate the smooth transition, sale, or closure of the business; and
  • work alongside accountants and financial advisors to ensure proper tax planning and compliance.

For expert advice on handling a business during probate, contact Lucy Brown in our private client team on 0191 297 0011 or via email at whitley.bay@kiddspoorlaw.com

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

Codicils: how to use them and pitfalls to avoid

A codicil can be a convenient way to update your will without needing to rewrite it entirely. However, it is crucial to use them carefully to avoid creating confusion or invalidating your will.

‘Codicils can be useful for minor updates, but they must be executed correctly to avoid unintended consequences,’ explains Lucy Brown, head of wills and probate. ‘Even small errors can create ambiguity or disputes, so getting legal advice is essential to ensure your wishes are carried out properly. This will ensure that your intentions are clear and legally enforceable, protecting your estate and beneficiaries.’

What is a codicil?

A codicil is a legal document used to make amendments to an existing will. Rather than drafting an entirely new will, a codicil allows you to make specific changes while keeping the original will intact. It must be signed and witnessed in the same way as a will to be legally valid. Codicils can range from simple modifications, such as updating an executor, to more complex changes affecting multiple clauses in a will.

Codicils are particularly useful when you wish to make minor updates without the time and cost involved in drafting a completely new will.

When to use a codicil

Codicils are most appropriate for minor changes, such as:

  • updating executors or trustees;
  • changing a beneficiary’s name (e.g., due to marriage or divorce);
  • making small gifts or legacies; or
  • adjusting funeral wishes.

For more substantial changes – such as altering how the bulk of your estate is distributed, modifying residuary beneficiaries, or adding complex trust structures – it is usually better to create a new will to avoid complications.

Best practices when using a codicil

To minimise risks when using a codicil:

  • ensure that it is signed and witnessed correctly, just like a will;
  • clearly reference the original will by date, to avoid confusion;
  • store the codicil securely alongside the original will to prevent separation;
  • keep the number of codicils to a minimum to avoid inconsistencies;
  • seek legal advice to confirm that the changes do not create unintended consequences; and
  • regularly review your will and codicils to ensure they remain relevant and enforceable.

Pitfalls of using a codicil

While codicils can be a practical way to update a will, they come with risks which include:

  • inconsistencies – multiple codicils can create confusion or contradict the original will, making it difficult to interpret your true intentions.  In particular, later codicils may fail to reference all previous codicils, leading to inconsistencies. Over time, this can result in provisions that do not properly align, creating a risk of ambiguity or even invalidity if contradictions arise. The more codicils that exist, the greater the risk of them failing to dovetail together, which can complicate the probate process and increase the chances of a dispute.
  • revocation of will terms – if a codicil is not carefully worded or cross referenced properly, it may unintentionally override key provisions of the will.
  • risk of a dispute – unclear or improperly executed codicils can increase the likelihood of a legal challenge, particularly if beneficiaries feel disadvantaged.
  • storage and safe custody issues – if a codicil is stored separately from the original will, there is a risk that it may not be found or considered during probate. If the will and codicil are mistakenly filed in separate places and only the will is located, the codicil may be overlooked. This could lead to an outdated will being administered, resulting in a loved one’s final wishes not being followed and a potential legal challenge.

Alternatives to codicils

In some cases, drafting a new will may be more effective than using a codicil. A new will:

  • avoids confusion caused by multiple documents;
  • ensures clarity and consistency in estate distribution;
  • revokes all previous wills and codicils, reducing the risk of a dispute;
  • allows a comprehensive review of all provisions to reflect current intentions and legal considerations; and
  • provides an opportunity to fully reflect any changes in tax laws or personal circumstances that may impact your estate plan.

If you are making significant changes, particularly to the main beneficiaries or overall distribution of your estate, a fresh will is usually the best option.

How we can help

Our experienced team can help you:

  • determine whether a codicil is suitable for your needs or if a new will is advisable;
  • draft and execute codicils correctly to ensure they are legally binding;
  • review your estate planning regularly to keep your will up to date;
  • prevent potential disputes by ensuring clear and precise wording in your documents;
  • arrange safe and secure storage for your will and codicils to ensure they are properly considered during probate; and
  • provide comprehensive advice on how changes in tax and estate laws may impact your wishes.

For expert advice on updating your will, contact Lucy Brown in our private client team on 0191 297 0011 or via email at whitley.bay@kiddspoorlaw.com

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

What are an executor’s duties towards a missing beneficiary?

As an executor or administrator of an estate, your duty extends beyond merely distributing assets; it includes the responsibility to use all reasonable means to locate missing beneficiaries.  If the missing beneficiary turned up after you had wrongly distributed their £50,000 inheritance, you could find yourself personally on the hook to the extent of their loss.

‘In order to fulfil your duties to administer the estate properly, it is imperative to exhaust every possible avenue to find a missing beneficiary,’ says Lucy Brown head of the wills and probate team.  ‘We can guide you through this complex process, ensuring that all reasonable steps are taken and that you are protected from any potential legal repercussions.’

In this article, Lucy highlights some of the issues involved in an estate where a beneficiary cannot be located.

While beneficiaries may go missing for a variety of reasons, common scenarios include lack of contact over many years, relocation without providing new contact details, and estrangement from the deceased person.

It is particularly common in cases where there is no will, as the intestacy rules dictate how a deceased person’s estate is distributed.  For example, if someone has died without any close family and they did not know their more distant relatives who would be eligible to receive a share of the estate. These distant relatives may be more difficult to trace, but the duty of the executor or administrator of an estate remains the same.

Legal implications of a missing beneficiary

Executors and administrators have an important duty (sometimes called a fiduciary duty) towards all the beneficiaries of an estate, whether named in a will or entitled under the intestacy rules.

Failing to locate a missing beneficiary can lead to significant legal implications, including personal liability for distributing assets incorrectly. You may be held accountable for any financial loss suffered by a missing beneficiary due to an incorrect distribution.

When do you need to locate beneficiaries?

You need to make reasonable efforts to locate all beneficiaries as soon as possible.  This is so that they can be informed of the terms of the will, what the estate comprises in terms of assets and liabilities and who is dealing with the estate administration.  If no attempts to locate beneficiaries are made at the outset, it may leave insufficient time to locate them when the estate should ordinarily be finalised.

How can you locate a missing beneficiary?

If no response to any initial communications is received, more thorough attempts to locate the beneficiary need to begin.  You have several options, and the choice will depend on the facts of the particular case, the wording of the will (including whether it contains a trust), the circumstances of the other beneficiaries and the likelihood of eventually finding the missing beneficiary.

 Some of the options open to you include the following:

Consulting the will file: if a separate firm prepared the will of the person who died, consider asking for a copy of the will instructions given to the solicitor to see if the person may have left any contact details for the beneficiary. They may also have provided other useful information such as how they knew them, where they may have worked or even details of their social media.

Contacting relevant people: if you have established contact with some but not all beneficiaries of the estate, some of them may be able to help.  Alternatively, friends, family members or former colleagues of the deceased person may have current contact details.

Social media:  it may be appropriate to look for the beneficiary via social media accounts, such as Facebook or LinkedIn, so that you can pursue other methods of contact.

Search public records: electoral registers, birth, marriage and death records can provide valuable information as to what may have happened to the missing beneficiary.

Using professional tracing services: these services specialise in locating missing people and can be highly effective.  This is particularly useful in intestacies, and genealogy companies have many resources at their disposal to find beneficiaries.  Some have a worldwide network which allows the company to establish if, for example, the beneficiary may have emigrated to a different country.

Finalising an estate when a beneficiary is unable to be located

If, despite all exhaustive attempts to find them, a beneficiary still cannot be found, this may be due to various reasons, such as immigration or a name change.  Sound legal advice will ensure that you take all reasonable steps to find a missing beneficiary and can safeguard your personal liability for any financial loss caused by an inaccurate distribution.

Some of the options open to you at this stage include the following:

Holding funds: you can set aside the entitlement for the missing beneficiary in an executors’ account.  If the beneficiary is then located in the future, they can claim their inheritance.  This can be unsatisfactory in that it does not allow the estate to be finalised in a timely manner and can impose long term obligations on you, as an executor or administrator.

Paying other beneficiaries: alternatively, you can distribute the amount due to the missing beneficiary to the other beneficiaries, subject to a legally binding commitment that if the missing beneficiary emerges later, the other beneficiaries will repay the amount.  All beneficiaries (except the missing one) must approve this approach.  This can be a risky approach especially if you have little knowledge as to the financial position of each beneficiary.

Missing beneficiary insurance: this is a type of insurance which provides coverage for you in the event that a missing beneficiary comes forward after the estate has been distributed.  It can cover the financial loss associated with paying the beneficiary’s share and any legal costs incurred.  This can offer peace of mind and financial protection after you have made exhaustive efforts to locate beneficiary without success.

The court: for maximum protection, you can seek court intervention.  The court may issue what is called a ‘Benjamin Order’ which allows you to distribute the estate on the assumption that the missing beneficiary has died. This court order protects the executor from any liability if the beneficiary later comes forward.   The downside to this approach is that it can be an expensive exercise.

How we can help

It is important to remember that each case is unique, and legal advice should be sought to determine the best course of action.

Our private client solicitors offer comprehensive support including sound legal advice to ensure you fulfil your fiduciary duties and avoid personal liability.  We collaborate with expert tracing agents to locate missing beneficiaries efficiently and can facilitate introductions to those who can advise on missing beneficiary insurance to protect you against potential future claims.  We could also make a court application for a Benjamin Order (or another court order) where appropriate.

By engaging our services, you can confidently fulfil your role as an executor, knowing you have taken all reasonable steps to locate and provide for all beneficiaries of the estate.

For further information, please contact Lucy Brown in the wills and probate team on 0191 297 0011 or email whitley.bay@kiddspoorlaw.com

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

End-of-life care planning and the role of a health and welfare LPA

The recently published Terminally Ill Adults (End of Life) Bill, aims to permit people in England and Wales who have an incurable illness to be legally assisted by a doctor to die. Whichever side of the debate you support, the bill is a reminder that it is important to make your wishes clear if you have strong views about your end-of-life care.

One option is to make a health and welfare lasting power of attorney (LPA) which gives trusted individuals the power to act in your best interests and communicate your preferences when you can no longer express them yourself.

It is a myth that your loved ones will be able to make these important healthcare decisions. Without a health and welfare LPA in place, your family cannot legally make decisions about your healthcare. While they will likely be consulted, decisions may instead fall to healthcare professionals or could even be subject to court intervention.

‘Health and welfare LPAs empower individuals of all ages to take control of their future care, ensuring that their values and preferences are respected even when they cannot voice them,’ explains Lucy Brown, head of wills and probate. ‘LPAs are not just for the elderly: anyone can lose capacity due to an illness or accident. An LPA ensures your wishes are respected, regardless of age.’

The Terminally Ill Adults (End of Life) Bill

The Terminally Ill Adults (End of Life) Bill, sometimes referred to as the ‘Assisted Dying Bill’, represents a significant shift in how the law approaches end-of-life choices. It proposes to allow terminally ill adults to request medical assistance to end their life under tightly regulated conditions. While the bill is still in its early stages and could take considerable time to come into force (if at all), its introduction has highlighted issues about individual autonomy and dignity in the face of terminal illness.

Key proposals under the bill include the following:

  • The bill would permit a terminally ill adult to seek assistance from a doctor to end their life via a process known as physician-assisted suicide. This differs from voluntary euthanasia, where a healthcare professional administers medication to end a person’s life – something that will remain illegal.  Under the proposed legislation, a doctor may prescribe and prepare the ‘approved’ substance, but the individual must self-administer  Under the initial proposals, no doctor or any other person would be allowed to administer the medication on behalf of the terminally ill individual.
  • The bill imposes the following requirements on the person seeking assistance:
    • they must be resident in England or Wales and have been registered with a GP for at least 12 months;
    • they must have the mental capacity to make the choice and be deemed to have expressed a clear, settled and informed wish, free from coercion or pressure;
    • they must be expected to die within six months;
    • they must make two separate declarations, witnessed and signed (by them or a proxy on their behalf), about their wish to die;
    • two independent doctors must be satisfied the person is eligible, and there must be at least seven days between the doctors’ assessments; and
    • a High Court judge must hear from at least one of the doctors and can also question the dying person, or anyone else they consider appropriate. There must be a further 14 days after the judge has made the ruling (although this can be shortened to 48 hours in some circumstances.

While the bill passes through Parliament, it serves as a reminder of the importance of documenting your healthcare preferences through instruments like a health and welfare LPA or an advance directive (also known as a ‘living will’).

What is a health and welfare LPA?

A health and welfare lasting power of attorney is a legal document that allows you to appoint one or more people to make decisions about your health and personal welfare if you lose the mental capacity to do so. These decisions can include ones about your medical treatment, living arrangements, and daily care.

Unlike a property and financial affairs LPA, a health and welfare LPA can only ever come into effect if you are deemed to be unable to make decisions for yourself, ensuring your preferences are respected at critical moments.

What is the difference between an LPA and an advance directive?

In contrast to an advance directive, an LPA allows your appointed attorney(s) to make a range of healthcare and personal welfare decisions on your behalf, rather than simply setting out specific treatment preferences in advance. An advance directive (also known as a living will) is a legally binding document that enables you to refuse specific medical treatments in certain circumstances, but it does not empower anyone to make broader decisions about your care. Having both an advance directive and a health and welfare LPA can ensure that your wishes are clearly documented and that trusted individuals can act on your behalf if needed.

Why it is important to document your wishes

Knowing that you are seriously ill will be upsetting enough for your family and loved ones, but it is particularly stressful for them to be faced with difficult decisions if you have not communicated your wishes.  In the absence of clear instructions, a dispute can arise among family members who have different personal views or recollections of things you have said in the past.

During the process of setting up a health and welfare LPA, you can consult your medical team about your prognosis and any key decisions which may need to be made in the future.  Your solicitor can then help you to document your preferences to provide clarity and to ensure that your chosen attorneys have the authority to act according to your instructions.

What decisions can be included in a Health and Welfare LPA?

Through a health and welfare LPA, you can outline your preferences regarding:

  • consent or refusal of life-sustaining treatment;
  • preferred care and living arrangements, such as home care or residential care;
  • dietary preferences, religious or cultural considerations; and
  • medical treatments you wish to avoid.

The scope of decisions included in your LPA can be tailored to reflect your values, beliefs, and priorities.

How we can help

We have extensive experience in drafting health and welfare LPAs and guiding clients through the process. Our team can:

  • explain the scope and benefits of an LPA;
  • help you decide who to appoint as attorneys and how to document your wishes;
  • draft your health and welfare LPA to ensure it accurately reflects your instructions and preferences; and
  • ensure your LPA is legally sound and registered with the Office of the Public Guardian.

For more information or to discuss setting up a health and welfare LPA, contact Lucy Brown in our private client team on 0191 297 0011 or via email at whitley.bay@kiddspoorlaw.com

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published

Ensuring your will is validly signed and witnessed

If you have gone to the trouble of drafting a will to ensure that your assets are distributed according to your wishes after you die, then it is important to ensure that the will is legally valid. A simple mistake can undo your wishes, as happened in this example.

David decided to draft his will without legal assistance, opting for a DIY (do-it-yourself) pack. He outlined how he wanted his assets to be distributed among his children and a charity he supported.  He asked two of his neighbours to act as witnesses, but he signed the will in his living room before taking the will to each neighbour’s house separately for them to sign as a witness, which they did. Neither witness was present when David signed the will, and this came to light during probate and the will was declared invalid because it did not meet the legal witnessing requirements. It was therefore disregarded entirely, and his estate was distributed according to the rules of intestacy. This meant that the charity received nothing and David’s assets were divided among his closest relatives, which was not his intention.

‘The people and process involved in signing and witnessing a will are fundamental to ensuring it is a valid will,’ says Lucy Brown, head of the wills and probate team with. ‘We often see problems arising when people use a cheap template or attempt to draft their will without professional legal advice.’

In this article, Lucy explores the legal requirements for signing a will, the role and responsibilities of witnesses, proper witnessing procedures, and the consequences of failing to adhere to these requirements.

How to sign your will

Under English law, the requirements for signing a will are governed by the Wills Act 1837.

For your will to be legally valid it must be in writing and signed by you or, less commonly, by someone else in your presence and at your direction. For example, if you are unable to sign your will due to a physical limitation, such as a hand disability or injury, you can either direct someone else to sign on your behalf or sign using a mark like an ‘X’ or another simple mark.

A will requires a handwritten signature from you in the presence of two witnesses.  Signing a will electronically, whether through an e-signature or any digital means, does not constitute a valid execution of this will.

You must have the legal capacity to create a will, meaning you must be at least 18 years old and of sound mind.

Is signing a codicil different?

A codicil is a legal document that allows you to make minor changes or additions to an existing will without having to create a new one. Like a will, a codicil must be signed and witnessed in accordance with the Wills Act to be valid.

How many witnesses are required?

You must sign or acknowledge your signature in the presence of at least two witnesses who are present at the same time. Each witness must then attest and sign the will in your presence (but not necessarily in the presence of the other witness).

Witnesses must therefore be present at the same time as you to observe you signing your will. After you sign, each witness must then sign the will in your presence.  Their name, address and occupation should also be stated on the will.

Strictly speaking, witnesses do not need to have read the will or know what it contains.

Who can witness my will?

Witnesses should be independent individuals, meaning they should not be beneficiaries of your will or related to anyone who is a beneficiary.

If a beneficiary or someone closely related to a beneficiary serves as a witness, this could result in the beneficiary losing their entitlement under the will, although the will itself may remain valid.

For example, after taking no formal legal advice, Elizabeth gave most of her estate to her niece in her will. She also asked her niece to serve as one of the witnesses to the will, having no idea this was not permitted.  When a dispute arose, the court ruled that while the will was valid, the niece was disqualified from receiving her inheritance because she was a witness, and the estate was distributed among the other beneficiaries.

Role and responsibilities of witnesses

Witnesses play an essential part in the execution of a valid will, to ensure compliance with the requirements of the Wills Act so that the will is valid.

Their role is to verify that:

  • you are the person who is signing the will;
  • that the signature is not forged; and
  • you have not been coerced into signing it.

Normally this concludes the role of a witness to a will, but evidence may be required from witnesses to a will after death as part of an estate dispute.  For example, if someone has made a claim that a will is invalid due to ‘lack of due execution’, where the legal requirements for making a valid will are alleged not to have been followed.

Alternatively, someone may claim that you did not have the mental capacity to sign a will or that you were subject to undue influence.  In either case, witnesses may be required to provide evidence in the form of an affidavit or witness statement setting out what they may have seen or heard during the will signing process.

Even in less contentious estates, the Probate Registry often raises queries as to the circumstances of the signing of wills, and witnesses are asked to sign an ‘affidavit of execution of a will’ to confirm the will was signed and witnessed according to law.

What is the proper procedure for witnessing a will?

It is important that the witnesses are physically present with you at the time of signing, as remote witnessing (via video conferencing, for example) generally does not meet the legal requirements.

During the Covid-19 pandemic, the UK Government temporarily relaxed the rules to allow remote witnessing of wills via video conferencing between 31 January 2020 and 31 January 2022. This measure was introduced under the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 and specified that the witnesses must still see the testator sign the will (or acknowledge their signature) in real-time, and the will must be signed by the witnesses as soon as possible thereafter.

Although wills executed via video conferencing during the specified period are legally valid, resigning the will now in the physical presence of witnesses would be considered good practice and ensures that there can be no doubts about the will’s validity in the future.

Consequences of improper signing and witnessing of a will

If a will is not signed and witnessed in compliance with the requirements of the Wills Act, it may be declared invalid. This can result in your estate being distributed according to the rules of intestacy or under the terms of a previous will, which is unlikely to reflect your wishes. Intestacy laws generally prioritise close family members, potentially excluding partners, friends, charities, or other entities that you may have intended to benefit.

Improperly executed wills can also lead to disputes among potential beneficiaries, resulting in costly and prolonged legal battles. These disputes can deplete the estate’s assets and create disharmony among family members. In some cases, the court may deem certain parts of the will invalid, while upholding others, leading to partial intestacy or unintended distributions.

How we can help

We understand the complexities and nuances of will drafting and execution. Our experienced team is here to guide you through every step of the process, ensuring that your will is legally sound and reflects your true intentions. Whether you are creating a new will, updating an existing one, or making amendments through a codicil, we offer bespoke advice tailored to your unique circumstances.

We take the time to understand your wishes and ensure that your will is executed in strict compliance with the law, reducing the risk of disputes and ensuring that your estate is distributed exactly as you wish.

For further information, please contact Lucy Brown in the wills and probate team on 0191 297 0011 or email whitley.bay@kiddspoorlaw.com

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.