wills and probate

Don’t DIY Your Will!

We are a nation of DIYers – getting stuck in trying to solve those house and garden problems by having a go ourselves rather than arranging for someone to come out and have a look. With an explosion of ‘how to’ videos online, many people are learning new skills themselves and in the current climate when household bills and expenses are steadily increasing, being able to save some money in the process can be an added bonus.

But there are still things you shouldn’t try to Do It Yourself and Wills are definitely one of those. There are standard templates available in the shops, and very cheap online services available, but these are not recommended.  It is tempting to think that these are preferable to a solicitor because they save you time and money now, but you could be storing up problems which only come to light in many years’ time, when you are no longer here to explain what you were trying to achieve.

Ultimately, dealing with these issues and putting problems right could cost your estate far more, than if you had used a solicitor or reputable Will writer to start with.  There really is no substitute for having a Will professionally prepared by someone who will spend time with you, getting to know your circumstances and understanding your wishes and priorities.

In this article I will highlight some of the main difficulties we have seen come to light in homemade, or online Wills.

1. The Will you have prepared might not actually be valid.

In order to be valid (subject to a very few specific exceptions), a Will has to be in writing, hand-signed by the person making it, and that signature has to be witnessed by 2 witnesses. If you are making your own Will – are you aware of those legal requirements?

Another problem which can arise is someone who makes a Will and then gets married afterwards. Marriage automatically revokes an existing Will – if you are planning to get married when you make your Will,  a solicitor will know how to prevent that automatic revocation.

In both cases, if your Will is not valid at the time you die, your wishes as expressed in it will have no legal effect. Your estate will be distributed according to a strict set of legal rules called the Intestacy Rules which will take no account of your personal situation, and only benefit your spouse and your closest blood relatives. And potentially not in the way you would have chosen.

2.  The Will may not actually distribute your estate as you wanted it to.

There are several problems which can occur with a homemade Will and some of those we have seen in practice include –

  • Wills which attempt to leave the estate divided into percentages, but the percentages don’t add up to 100%
  • Wills where a beneficiary has also acted as witness. In this case, the Will is not invalid, but the beneficiary can no longer receive their gift under the Will
  • Wills where the wording used is ambiguous and it is not certain what the person making it meant
  • Wills where the person making the Will has attempted to use complex provisions which fail because the wording is not sufficiently certain or clear. For example, one scenario people often ask about is how to leave their estate to their spouse but then also include protection to make sure it then reaches their children if spouse remarries. Unless the Will sets up specific trust provisions to cover this, it will likely not happen as the testator intended. 

We often hear complaints and jokes about the technical language used in Wills, but this wording has been constructed and crafted over time and through case law, so that it achieves the desired result.

3.  There will be little or no protection of your Will if it is challenged in the future.

Let’s say you have 2 children and you decide to make a Will excluding one of them entirely. It may be for very good reasons, and you make a home-made Will leaving everything to the one child.

On your death, it is likely that the child which has been excluded will be unhappy about this and might try to challenge your Will on the basis either that you did not have capacity to make it at the time (ie you did not understand properly what you were doing), or that you were being forced to make it by the other child.

With a home made Will, or a Will made online where you have never met or had a chance to explain your Will to a professional, there is a high degree of risk that it could be successfully challenged as there is unlikely to be any information about why you have made your Will in that way. Even if the person challenging the Will is ultimately not successful, having to argue or negotiate with them could cost your estate tens of thousands of pounds, it will take time and is likely to be very stressful for your Executors and beneficiaries.

If you have made a Will with a solicitor or other professional, they will keep notes of conversations with you explaining your reasoning for this decision. They make ask you to sign a statement to be kept with your Will explaining it in your own words and they will be able to advise on any other steps which might need to be taken to protect the Will which you want to make.

4.  If you use a will template, it is likely that the company which supplied it won’t take any responsibility for your Will being correctly made and if you make a mistake, there won’t be any legal comeback on them at all.

In conclusion, we are all cost-conscious these days, but when it comes to important legal decisions and documents, spending a little now could save your estate far more expense in the future and ensure that your wishes are carried out in the way that you want them to be.

For more information about making Wills or to review your Will please contact Kathryn Caple, Partner and Head of Wills and Probate at Else Solicitors on 01283 526200.

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