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Basic structure of a Will
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Home / Making a Will / Creating your Will / Basic structure of a Will

The complexity of a will, in any particular case, will depend on the nature of the “testator’s” (the person whose will it is. A female is known as a “testatrix”) “estate” (the property and assets) and their personal circumstances.

Normally a will will be structured as follows:

Revocation of previous wills and codicils

In order to avoid any confusion as to whether the will is intended to be the last will of the testator the will will normally include what is called a “revocation clause”. Normally the revocation clause will be worded as follows:

“I [name] of [address] revoke all former testamentary dispositions made by me and declare this to be my last will”

Different wording will, however, be required where the testator owns property situated overseas or where the testator and his or her spouse make “mutual wills” (wills made by each spouse in similar terms).

Appointment of executors

An “executor” is a person who is appointed under a will to deal with the testator’s estate upon their death. Their job is to collect the estate of a person when they die, to discharge any liabilities of the estate and to distribute the remainder of the estate to the beneficiaries.

Normally a testator will name his or her chosen executor(s) in their will and will make provision for an alternative executor or executors to be appointed should his or her first choice of executor(s) die before him or her or “renounce probate” (decides that they don’t want to be an executor).

Executors can be beneficiaries under the will and are normally family members, friends or a solicitor.

Appointment of trustees

Sometimes it will be desirable for the will to create a “trust” if, for example, the testator has young children who will not inherit the testator’s estate until they reach a certain age.

Where a trust is created in the will a testator will normally name his or her chosen trustee(s) in their will and will make provision for an alternative trustee or trustees to be appointed should his or her first choice of trustee(s) die before him or her or is unable or unwilling to take on the role. Normally the trustees are the same people as the executors.

Appointment of guardians

If the testator has young children they will normally appoint “guardians” to look after their children in the event of their death.

A testator may make provision for an alternative guardian to be appointed should his or her first choice of guardian(s) die before him or her or is unable or unwilling to take on the role.

Specific gifts

If the testator wishes to leave specific property or assets to specific people (“beneficiaries”) then details of such gifts and beneficiaries will be set out in the will (“legacies”).

Beneficiaries may be specifically named or defined, for example, as the testator’s “grandchildren”. When naming a class of beneficiaries such as grandchildren the will may make provision for any grandchildren who are born after the testator makes his or her will.

Sometimes a will will include a clause providing for the gift to take affect only if the beneficiary survives the testator for a certain period of time, normally the period of one month.

A will may also make provision for property or assets to be left to another beneficiary or beneficiaries in the event that the testator’s first choice of beneficiary dies before him or her.

A will may also impose a condition, for example, that a beneficiary only inherit property or assets when they reach a certain age. Any conditions imposed must be reasonable and not contrary to public policy. If they are not then a Court may set aside any such bequest.

The residue

Normally a will will include a clause to deal with the testator’s “residuary estate”. The residuary estate consists of any property or assets which the testator has not specifically left to his or her beneficiaries.

Where the residuary estate is to be left to more than one person the will should state the proportions each beneficiary is to receive.

Creation of a trust

Where a testator wishes to set up a trust details of the trust property will be set out. The trust property may consist of specific assets or property or the residuary estate.

Where a trust is created the will will normally set out how the trust is to be managed and set out the powers of the trustees.

Funeral and burial arrangements

A will may contain a provision setting out any wishes the testator may have in relation to their funeral or the disposal of their body. Any such provisions will not be legally binding but are usually adhered to.

Testimonium

A will should be signed by the testator. Normally the following wording is used before the testator’s signature:

“IN WITNESS whereof I have hereunto set my hand this ……….. day of ………….. 2011”

This is known as a “testimonium clause”.

Attestation clause

The testator’s signature should be witnessed by two witnesses both present at the same time. Normally a will will include what is known as an “attestation clause” to show that the testator’s signature has been witnessed properly.

The normal wording of an attestation clause is as follows:

“SIGNED by the above-named [testator/testatrix] } [signature of testator/testatrix]

as [his/her] last will in the presence of us both present

at the same time who at [his/her] request and in [his/her]

presence and in the presence of each other have signed

our names below as witnesses:

[Signatures, addresses and descriptions of the two witnesses]”

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Single Will or Mirror Wills?

If you are a couple and wish to leave all your assets to each other then you could save money by making  Mirror Wills. You can also use Mirror Wills if you whish to leave your estate to the same beneficiaries. 
 
If you wish to leave different legacies, appoint different executors or you would like to specify individual funeral wishes then you will need to make two Single Wills.
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