D.I.Y Wills are cheap and easy to find, making them an attractive option for those who may not wish to incur the expense of legal fees by involving a solicitor, or discuss personal family matters such a family breakdowns. However, the implications of making a Will without the help of a trusted legal advisor may render your wishes uncertain or invalid, and could indeed lead to more costs and upset being incurred should your Will be challenged post-death. In this article, I discuss some of the common pitfalls that can be avoided by seeking expert help.
A Will must be in writing, whether it is hand-written on a scrap of paper or typed into a formal document, although a clearly formatted Will could avoid potential ambiguities or disputes after the death of the testator. The Will must also be signed by the testator or, where appropriate, by someone at the testator’s direction in order to confirm the testator’s intention.
To be legally valid, the testator’s signature must be witnessed by two individuals. Of particular importance is the requirement that both witnesses must be present when the testator signs or acknowledges their signature. They need not read the Will or even have knowledge that the document is a Will; the purpose of the witnessing requirement is to recognise the signature on the Will as that of the testator’s. The witnesses must also sign the Will in the testator’s presence.
If a Will is not signed and witnessed properly, the Will is considered invalid. Some practical solutions of how to witness a Will in line with COVID-19 restrictions can be found here.
Thought must also be had to the identity of the witnesses to the Will. If the witness (or their spouse or civil partner) is a beneficiary under the Will, the gift to that person will fail which means that the intentions of the person making the Will cannot be fulfilled.
The formalities in s9 of the Wills Act 1837 are of particular importance, as they were formulated to act as protection against fraud or making a Will under duress.
For instance, where a D.I.Y Will has been made with assistance from one of the beneficiaries to the Will there is a possibility that a person excluded from benefitting under the Will could argue there was coercion, i.e. undue influence on the testator, which would render the Will invalid.
As part of the process in preparing a Will, a solicitor will discuss your background circumstances and decision-making regarding the Will in order to understand why particular individuals are to benefit or be excluded from the Will. In doing so, they shall keep a record as evidence that they are satisfied there has been no undue influence, protecting against potential claims post-death.
Many people want to be certain that their estate is inherited in the way they choose. It is therefore important that the wording of your Will is clear and reflects your intention so that those administering the estate pass property in the correct shares and to the intended beneficiaries.
Unfortunately, this is not guaranteed where a Will is drafted by someone without prior Will-writing experience.
Where a testator’s intentions cannot be ascertained or where there is evidence of misunderstanding to the legal meaning of the words used in a Will, it may be necessary to apply to the Court who will determine the construction, which can prove costly.
What are the risks?
Where someone dies without leaving a valid Will, they are said to have died intestate and their estate is shared out according to the rules of intestacy.
The intestacy rules can still fall short of ensuring an estate is inherited how a person intends it to be, for instance passing (part of) the estate to someone you hadn’t intended to benefit or meaning that someone you wanted to benefit from the estate receives nothing.
For instance, many are not aware that the rules of intestacy still make no provision for unmarried couples or step-children. In such instances, the only course of action for the deceased’s partner or any dependants of the deceased would be to claim that reasonable financial provision was not made for them under the Inheritance (Provision for Family and Dependents) Act 1975. The consequences of making such a claim can be very costly financially and emotionally especially during a time of grief, and without guarantee it will be successful.
In addition, choosing not to put a Will in place can have tax implications. There are various Inheritance Tax and estate planning opportunities which are available where a legally valid Will is made with assistance of an expert solicitor, and which are not applicable upon intestacy.
Do D.I.Y Wills have a place during the Coronavirus pandemic?
It may be particularly tempting to arrange your own affairs in light of the social-distancing restrictions imposed as a result of the coronavirus, for want of discussing matters face-to-face but the reality of being unable to do so.
Our view is that it is more important than ever to ensure that Wills are validly executed to avoid frustration of the testator’s wishes or even disputes arising post-death. We strongly advise that you seek expert advice if you are considering making a Will during the pandemic.
During these uncertain times, many firms including Boyes Turner have ensured they continue to provide the same high level of service to suit clients’ changing needs, meeting with clients using conference or video calling and uninterrupted access to telephone and email facilities.
How can Boyes Turner help?
We understand that the motivation to make a Will is to protect your assets for the benefit of family and loved ones. We therefore take time to understand your background and needs to ensure your Will accurately and validly reflects your wishes. With our extensive experience and expert knowledge, you can trust a professional and stress-free service.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.