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What Your Will Cannot Do

In your will, we do as much as is sensible to achieve your wishes. There are, however, several things that a will cannot do. You can only note these areas, and make practical arrangements accordingly.

Your Children
Your children are not yours to give away. You can appoint guardians, but a court always can have the final say. Your choice of guardians will be respected as the clearest expression of your own wishes, but a court would still look to the child's best interests at the time, and in the circumstances then applying.

Joint Property
Property jointly owned is outside the scope of a will. Typically, a husband and wife will own their house in joint names. Each partner owns the entire house by law, and, on the death of one partner, the interest of the other does not increase. The interest of the person dying disappears immediately before his death, and the will takes effect 'on death.' By the time the will takes effect, the interest in the house has already gone, and there is nothing for the will to act upon. This is just why so many people own their houses in this way. It makes life simple.

Where members of your family are dependant upon you financially, particularly a spouse or children, then you cannot safely exclude them from taking a benefit. This might lead to a successful challenge to the will after your death. We can advise on what needs to be done to balance these risks.

When one partner to a marriage dies, the survivor may subsequently remarry. Any will, except in very limited circumstances, would be revoked by that marriage. If the surviving partner died without making a second will after that second marriage, then the new spouse (not your children) would take all, or the most substantial part, of the joint estate. Without tying uncomfortable knots in your financial arrangements, the only way to avoid this is to understand the true situation, and to agree informally that if this arises, the surviving partner would make a new will to protect the children. This is not by any means a perfect solution, but is often the only realistic option. Sadly th efailure to do this is very often the source of considerable bitterness and injustice.


Though wills frequently include directions for burial, the arrangements remain at the discretion of the person who actually arranges the funeral. If that person gets to read the will before the funeral, he may try to carry out your wishes, but he has no obligation to do so.

Each of these brings in further questions which may be important to you. Please do ask if you need to know more. In any event, none of these reasons by themselves is a good reason for not making a will.

Important: Please note that our law-bytes are retained for archival purposes only. The law changes, and these notes are often, now, out of date. You must take direct advice on your own personal situation and the law as it currently stands.
All information on this site is in general and summary form only. The content of any page on this site may be out of date and or incomplete, and you should not not rely directly upon it. Take direct professional legal advice which reflects your own particular situation.
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18 October 2013 56 18 October 2013