The Different Types of Will Services Explained

Most people know that they need a will, but as there are so many will writing services, it is not always clear which service is most appropriate for your circumstances. 

The right type of will depends entirely on your circumstances. In this guide, we will cover the main will services to help identify what each one means and when you might need it. 

Writing a will

It is a common misconception that you must be older to have a will. This isn’t the case. Everybody should have a will, regardless of age or wealth. 

Having a formal will and stating your wishes after death means that your wishes are clearly documented and legally protected, giving you control over who receives your money, property and personal possessions. 

If you don’t have a will, the intestacy rules apply. This means that your assets will be passed along in priority of blood relatives, and this may not reflect your wishes. Find out more about what happens when someone dies without a will in our article.

A will typically covers where you want your assets to go and can even cover the guardianship of your children after you are gone. It can also cover your funeral wishes, which can help ensure things are handled how you imagined; it can also take the strain of decision-making away from your family. 

Using a lawyer rather than a DIY will kit matters, particularly for anything more complex than a straightforward estate. Errors in a self-drafted will can be costly and difficult for those left behind to resolve, and crucially, they cannot be corrected once the person has died. That is why it is always best to instruct a lawyer to make sure your will has been written to accurately reflect your wishes. 

Updating an existing will

Major life changes such as marriage, divorce, new children or grandchildren, a significant change in assets, or a change in relationship with a beneficiary often prompt people to reflect on their current will. 

Most people don’t realise, but marriage will revoke any previous will you have written. This is important to remember, as if you pass away without updating your will, then the rules of intestacy will apply. This means that if you planned to leave anything to other important people in your life, such as cousins or friends, they will not legally be entitled to anything. 

What many people don't realise is that a will cannot simply be amended informally. In the UK, you must either add a codicil or rewrite the will entirely. Never write directly on the original will. Simply crossing things out or handwriting changes on an existing will is not legally valid.

A codicil is an official supplement to an existing will. It is best used when adding minor changes, such as updating a name, adding a small gift or changing an executor. 

Rewriting the will entirely is recommended following a significant life event, such as marriage or buying a home. This is often recommended over adding a codicil for changes such as these. 

Mirror wills

A mirror will usually consist of two separate wills which are nearly identical, made between a couple. The most common use of them is to state that each partner leaves their entire estate to the other when they die. Anything else passes down to shared beneficiaries when they have both died, such as their children. 

As they act as individual wills, a mirror will can be changed at any time without the other partner's permission to do so. This can be changed after the other person has passed, so it is important to keep this in mind when setting one up. The surviving partner could change their mind and remove certain people from the will or add others. 

Statutory wills

A statutory will is made on behalf of someone who lacks the mental capacity to make or change their own will. It is authorised by the Court of Protection (England and Wales) under the Mental Capacity Act 2005. 

A statutory will can be made for anyone over the age of 18 who cannot understand and make a valid will; this is called testamentary capacity. A loss of testamentary capacity is most commonly associated with conditions such as dementia or acquired brain injury, though it can result from any illness or injury affecting cognitive function.

The Court of Protection decides based on the person’s past and present wishes and the needs of their family or dependents. They will always act in the best interests of the person who lacks mental capacity.

Where possible, it is always better to put a will in place before capacity is lost. Once someone loses testamentary capacity entirely, a statutory will through the Court of Protection becomes the only option. Acting early gives the individual far greater control over how their estate is handled.

Living wills (advance decision)

A living will, or advance decision, lets you state your choice of medical care ahead of time. It doesn't deal with assets or inheritance; it deals with medical treatment. For example, you can specify your right to refuse specific medical treatments in circumstances where you can no longer communicate your wishes. This is sometimes referred to as an advance decision to refuse treatment. This only comes into effect when and if you lose the mental capacity to communicate your own medical choices. 

An advance decision is often confused with a lasting power of attorney for health and welfare. The difference here is that a living will has your wishes written out, whilst the power of attorney appoints a person to speak for you. 

Anyone over the age of 18 can make a living will, especially if they are facing a health risk or have strong views about end-of-life care. This needs to meet specific legal requirements to be valid, particularly if it relates to life-sustaining treatment, so it is strongly advisable to seek advice from a lawyer experienced in this area of law.

Contesting a will

If a will is contested, it means there is a legal challenge to the terms of the deceased person’s will. This typically occurs when someone believes the will does not reflect the true intentions of the deceased. 

Common legal grounds on which a will can be contested include:

• A lack of testamentary capacity
• Suspicions that the person was under undue influence to change their will
• A signature believed to be fraud or forgery
• Failure to comply with formal requirements
• A claim under the Inheritance Act

Who can contest a will depends on the grounds of the challenge. For Inheritance Act claims, this typically includes a spouse, civil partner, cohabiting partner, children and financial dependants. For challenges to the validity of a will, the rules are broader. Anyone with a legitimate interest in the estate may be able to bring a claim. Your lawyer will be able to advise on whether you have standing to challenge.

Making an Inheritance Act claim is different to contesting a will. An Inheritance Act claim is brought on the basis that the deceased failed to make reasonable financial provision for the claimant. The court does not automatically grant money to this person, but the court will consider a range of factors to decide if reasonable provisions have been made.

Inheritance Act claims must generally be brought within six months of the grant of probate. While there is no strict time limit for challenging the validity of a will, significant delays can work against a claimant.

This is a complex and emotionally difficult area of law; early legal advice is essential. Our experienced probate professional are here to guide you through these complex and emotional matters to ensure your rights are protected.

Which will service do I need?

There are lots of types of wills, here we have simply explained the right will to consider based on your current circumstances:

• If you don't have a will at all, you will need to write a will.
• If your circumstances have changed since you made your will, you will need to update your will by adding a codicil or rewriting it.
• If you're a couple wanting to protect each other and your children, you should consider a mirror will.
• If a loved one has lost or is losing mental capacity, look into a statutory will.
• If you want to set out your medical wishes, you will need a living will/ advance decision.
• If you believe a will is invalid or unfair, you will need to contest a will or make an Inheritance Act claim.

Wills at Clapham & Collinge

Don’t put it off. Whatever your situation, the right will, properly drafted by an experienced lawyer, gives you and your family peace of mind. 

Here at Clapham & Collinge our wills, trusts and probate team are experienced in wills, LPAs, trusts and probate. Our team includes dementia-friendly trained professional and makes writing a will a simple, collaborative process. 

To find out more or to arrange a consultation with one of our wills, trusts and probate professional, get in touch with your nearest Clapham & Collinge office today.

Offices:

Norwich — 01603 693500

Sheringham — 01263 823398

North Walsham — 01692 660230

Email: enquiries@clapham-collinge.co.uk

The information in this article is for general guidance only and should not be treated as legal advice. It is not a substitute for obtaining advice tailored to your circumstances. While we aim to ensure accuracy at the time of publication, laws and guidance may change. Clapham & Collinge LLP accepts no liability for any loss arising from reliance on this content. For personalised advice, please contact our client relations team to book an appointment.