What are will documents?
A will is a legal document used to set out somebody’s wishes for how they want their affairs to be dealt with after their death. Wills are legally binding documents so long as they’re created and executed correctly.
It’s a good idea to create a will to ensure that your family and other dependants are provided and cared for after your death. Creating a will also lets you communicate other wishes you have for how your affairs will be dealt with.
For more information, read Reasons to make a will.
A typical will is created by a single individual called the ‘testator’. It covers their affairs across various areas of their life. For example, a will usually deals with:
specifying how the testator’s estate (ie their collection of assets, eg property, money, digital assets, and shares) will be distributed to people or organisations (eg charities), by making gifts and/or trusts
appointing a legal guardian to look after any children under 18 years old that the testator has at the time of their death
setting out the testator’s wishes for their funeral and burial
The law on wills in England and Wales is slightly different to that in Scotland. For example, there are different signing requirements and different rules for how assets are distributed in the absence of a will. For more information on what a will usually includes, read Elements of a will. You can create a standard will using our Last will and testament and Last will and testament for Scotland templates or our Bespoke will writing service.
A business will is not technically a different type of document to a standard will. However, wills for business owners deserve unique mention due to the number of important considerations business owners should cover in their wills. For example, when creating their wills, business owners should include provisions to cover:
who will inherit their shares or business interest. The most tax-efficient way to pass on the monetary value associated with shares may differ depending on whether the person the testator wants to inherit the money is the same person they want to take over their control in the business
whether any of their shares in their business are better off held on trust (eg for their child to take full ownership of when they’re older)
whether they’d rather the business was sold and the assets and profits passed to their beneficiaries instead. If a testator has a sole trader business, this business will end when they die, in which case leaving guidance for how to dispose of any assets associated with the business will help their executors and/or beneficiaries
whether different executors are better suited to dealing with business matters versus personal matters
If a testator’s business is a company, and they’re concerned about how the business will be run after their death, it can also be prudent to put measures in place before death to help guide the business in the direction that the testator wants. Wishes can be set out in a will but, ultimately, control of the voting rights (and, therefore, decision-making powers) associated with the testator’s shares in a company will pass to the shares’ new owners. Such measures could include appointing new company directors who the testator trusts to guide the company.
For advice on planning business succession in a will, use our Bespoke will writing service.
Mirror wills are a pair of near-identical wills made by a (either unmarried or married) couple. They are usually used to ensure both partners are provided for when the other dies. It’s common, therefore, for the main provisions of mirror wills to leave most or all of each testator’s estate to their partner and, after the death of the partner, to any children. Often the only difference between a pair of mirror wills will be the testators’ names and perhaps each testator’s unique funeral and burial wishes.
Mirror wills are not appropriate for every couple. Each partner’s will is still their own and can be changed at any time, and there’s no legal duty to inform the other partner - so trust is essential. Moreover, if two partners have significantly different assets, near-identical wills may not be appropriate as one partner may need a more complex will than the other.
Joint wills and mutual wills
Joint and mutual wills are similar to mirror wills in that they allow a couple to create wills that work together and provide for each partner in the event of the other’s death. However, where mirror wills are revocable, mutual wills and joint wills involve legal obligations from one partner to the other.
Mutual wills are two separate wills created by two (or more) people (usually partners, but not always), which:
give each person reciprocal benefits. For example, each partner may leave the majority of their assets to the other, and
were created following an arrangement or agreement to make such mutually beneficial wills. This agreement may include an agreement not to revoke one of the wills without the consent of the other partner
When mutual wills are created with an express agreement that they’re irrevocable (in the absence of consent to change), this agreement will be treated as binding and a surviving partner generally cannot change their will after the other partner’s death.
Joint wills are usually created when two people creating mutual wills have testamentary wishes that are identical enough that they’re able to be contained within a single will document.
The single will document then operates as the separate will of each partner when they die. As for other mutual wills, if the partners agreed when making their will that neither party can revoke the will without the other’s consent, this will generally be considered legally binding on one partner after the other’s death.
When are mutual and joint wills appropriate?
Joint and mutual wills can work well for couples with very clear and certain wishes for how they want their property to be shared after their deaths. For example, for a couple of similar age who are certain that they want to leave their assets to each other and then, after the second partner’s death, to their children.
Joint and mutual wills can be risky, however, if there’s any chance that one partner’s wishes may change after the other’s death. For example, if there’s any realistic possibility that a partner may have more partners or children later on that they may want to provide for. In such situations, being bound by a will made earlier in life can be problematic. Consequently, joint and mutual wills are now quite rare.
A statutory will is a will made by the courts on behalf of somebody who lacks the mental capacity required to legally make a will themselves. A person lacks the mental capacity to make a certain decision (ie to make a will) if they, at the relevant time, cannot:
understand the information related to their decision and the consequences of their decision (eg the implications of disinheriting somebody)
retain this information for long enough to consider it
weigh up their options related to the decision, or cannot
communicate their decision in any way
Legal lack of capacity may be present in people who have, for example, dementia, serious brain injuries, or severe learning disabilities.
Statutory wills can be made as somebody’s first will or to amend a will. They’re made by somebody applying to the Court of Protection on the testator’s behalf. The application must explain, among other things, why the testator lacks capacity, the changes that should be made to their will (or why one must be created), and why these decisions are in the testator’s best interests. The application process can involve providing lots of supporting evidence and court hearings. If the Court approves an application, they’ll issue a statutory will which should be executed on behalf of the testator.
For more information, read Statutory wills.
Codicils are legal documents that a testator can use to make one or a few small, non-complex changes to their will. A codicil amends certain parts of an existing and current will without a whole new will needing to be created.
Codicils are an efficient way to make minor changes. For example, they’re useful if a testator wants to gift a specific item to somebody or if they want to appoint a new executor. They’re not appropriate for large changes or for multiple changes in response to significant life events, such as getting married, buying a house, or having a child. In such situations, creating a new will is usually more appropriate.
Other decision-making documents
Creating a will is an important way of setting somebody’s wishes for how their assets will be distributed and their family cared for after their death. It can also be prudent for people to make legal documents setting out how they want certain decisions to be made for them whilst they’re still alive, for example, if they lose mental capacity to make these decisions themselves. Relevant legal documents include:
Powers of attorney (POAs)
Powers of attorney are legal documents that give somebody the legal power to act on somebody else’s behalf in certain situations. In England and Wales, It’s possible to create either:
a General power of attorney (or ‘GPA’ or ‘ordinary power of attorney’) - which gives somebody the power to act for the person granting the power (the ‘donor’) on a temporary basis, for example, if they’re abroad or in hospital. GPAs are only valid whilst the person who created them still has mental capacity to make their own decisions
a lasting power of attorney (or ‘LPA’) - which gives somebody the power to make decisions for the donor on an ongoing basis if the donor later loses mental capacity to make these decisions themselves. LPAs can be created for either financial and property decisions or for health and care decisions
In Scotland, it’s possible to create:
a continuing power of attorney (CPA) - which can give somebody immediate power to make financial and property decisions for a donor or which can give them these powers after the donor loses capacity
a welfare power of attorney (WPA) - which grants somebody the power to make decisions about welfare for the donor after they’ve lost the capacity to make them themselves
a combined CPA and WPA - which grants somebody the powers of a CPA and WPA without making two separate powers of attorney
For more information, read Power of attorney in Scotland.
Advance decisions (ie ‘advance decisions to refuse treatment’, ‘ADRTs’, or ‘living wills’) are legal documents created to set out somebody’s decision to refuse certain kinds of medical treatment in certain situations. They’re intended to inform healthcare professionals of somebody’s wishes in case such treatments become necessary in a situation in which the person lacks capacity to consent to or refuse the treatment. For example, someone may not want to have CPR attempted if they’ve had a cardiac arrest due to a certain progressive disease, like cancer. ADRTs are legally binding if they’re created validly. This means that, so long as they’re sure an ADRT is valid and applicable to the current situation, a healthcare professional should follow the wishes it sets out.