With this in mind, Michael Swan, experienced Solicitor in the Private Client Team at K J Smith Solicitors, explains the different types of wills available and how they compare to other legal documents.
Last Will and Testament
Your last will and testament sets out what you would like to be done with your assets after your death. It also specifies who is responsible for making sure that your wishes are implemented. If you have minor children (children under 18), then you may also wish to include a guardianship clause in your will.
Guardianship clauses state who is to have guardianship of minor children in the event of the death of the person or people with parental responsibility. From a legal perspective, a mother always has parental responsibility for her children.
A father will automatically have parental responsibility for his children if he is married to their mother at the time of their birth, if he marries her later or if he is named on the child’s birth certificate. There are other ways in which a father can obtain parental responsibility, but none of them are automatic.
Having a guardianship clause in a will is strongly recommended since it can save everyone a lot of stress at a very difficult time. In the absence of a guardianship clause, social services and the courts will decide what happens to the children. This can take time and may not produce the results the parents would have wanted. Even if it does, there is a possibility that the children will have to spend time in foster care before everything is finalised.
Wills can also be used to make provision for pets. This can allow you to ensure that they will be placed in a suitable home rather than just landing up with whoever claims them first. It can also allow you to make provision for the vet's bills an ageing pet may need.
Having a guardianship clause in a will is strongly recommended since it can save everyone a lot of stress at a very difficult time.
A Last Will and Testament versus a Trust
Your last will and testament basically deals with the transfer of ownership of your assets. A trust is effectively a legal wrapper for assets. You can transfer assets into it before your death or have assets transferred into it upon your death. Trusts can be used for a variety of purposes. In the context of wills, however, they tend to be used to ensure that you retain some degree of control over your assets even after your death.
This is particularly relevant when wills need to make provision for children. Without a trust, there is a limit to what you can do to control what children do with their inheritance once they reach the age of 18. With a trust, however, you can make arrangements to “drip-feed” them their inheritance as they mature into full adulthood. This can reassure you not just that they can’t go out and blow their inheritance, but also that they’re not going to be targeted by unscrupulous people who want to take advantage of their lack of life experience.
Mirror Wills
A mirror will, as its name implies, is a will which reflects the wishes of another will. Mirror wills are typically used in situations where couples (who may or may not be in legally recognised relationships), want to dispose of their assets in essentially the same way. You can think of a mirror will as being largely a copy-and-paste of the will it reflects.
That is not to say that a mirror will has to be set in stone. It can be updated at any time, even after the death of the other party. It just means that at the time it is created, it reflects the intentions expressed in the first will.
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Living Will
A living will sets out what medical treatments you do and do not wish to receive should you ever find yourself in a situation where you are unable to make informed decisions about your treatment. A living will only activates if the designated situations arise and expires upon your death.
A Living Will versus an advance statement
A living will is a legally-binding document and so must be followed by those looking after your care. An advanced statement is not legally-binding but should still be reviewed by those managing your health. It can, for example, be used to express any treatment you do not wish to receive because of your religious beliefs (e.g. the refusal of blood transfusions or medication containing ingredients derived from pigs or cattle). The advanced statement can be kept with your Living Will to ensure that both are reviewed together.
A Living Will versus a lasting power of attorney
A living will is a document in which you set out the decisions you have already made. A lasting power of attorney enables someone else to make decisions on your behalf. LPAs come in two forms: Health and Welfare and Property and Financial Affairs. The former can be used alongside living wills. Basically, the living will would be checked first and if there were no relevant instructions in it, your attorney would be empowered to make the decision on your behalf.
A lasting power of attorney enables someone else to make decisions on your behalf.
Signing a Will
With two exceptions, all wills need to be signed and witnessed. For completeness, the two exceptions are holographic wills and a "nuncupative" or "oral" will. A holographic will is written entirely in your own handwriting. A nuncupative will is a spoken will. It can only be used in very specific circumstances, which are unlikely to apply to the average person.
Therefore, unless you really feel like copying out your entire will by hand, your will needs to be signed and witnessed. Usually, this is not a challenge, but in a COVID-19 environment, it requires special protocols to be put in place.
In simple terms, you sign the will as the two witnesses watch from behind a window. You then show them the will from their side of the window and then pass it through the window for the witnesses to sign. All parties should wear gloves and use their own pen (i.e. not share). You should also remain socially-distant from each other.
Updating a will
Whatever form of will or wills you use, remember that they are not “set-and-forget” documents. Your life will change and your will or wills need(s) to be updated to reflect the changes life brings to you. It’s advisable to review your will(s) annual and it’s vital to review it/them after major life events.
