The unprecedented times of the last 12 months have forced people to grasp the “new normal” of conducting their lives online. Many of us are working remotely and in our personal and professional lives are conducting video chats with clients or to catch up with family and friends, participating in other household activities and formalities online. This includes the preparation of legal documents, which in many cases has been seen as a good thing but what about in the case of wills? In this article, I consider the potential pitfalls of the preparation of online wills and why this should still be seen as a last resort.
Online wills usually follow a standard template. Whilst this is fine for straight forward uncomplicated estates, this will not be the case for more complex estates, including estates where a testator may want to consider multiple heirs or leaving their estate in trust format. The standard format of some online wills mean that it may not be possible for the wills to adequately reflect the wishes of the testator. One of the most common reasons as to why the validity of a will is challenged is due to an alleged failure to execute the will correctly. In order for the will to be a valid will it must comply with the provisions of Section 9 of the Wills Act 1837(“the Act”). Accordingly, it must be signed by the testator in the presence of two independent witnesses, present at the same time, who should add their signatures to the will.
Online wills are often prepared on the assumption that the cost of doing so will be far cheaper for a testator but this is not always the case since, apart from anything else, they are often prepared without the testator having the benefit of legal advice. Again, whilst it is not essential in all cases for a will to be prepared by a legal adviser especially with the simpler and straight forward cases, there are many occasions where obtaining legal advice can result in costs savings, particularly as regards the question of payment of tax.
A legal adviser, when advising on the questions of preparation and execution of a will, can also give tax planning advice. If a testator does not receive such advice when preparing their will, there could be adverse tax consequences following their death, resulting in a large proportion of the estate being required to be used for the payment of unnecessary and/or avoidable tax. Instructing a legal adviser for the preparation of your will can often therefore mean that more of your estate is available for distribution to the beneficiaries rather than for payment of tax.
To ensure that a testator’s estate is distributed in accordance with their wishes it is important to make sure that beneficiaries are correctly identified in the will. There are many reasons why beneficiaries may not be correctly identified – for example, their name could be spelt incorrectly, there could be uncertainty as to whether or not a group of beneficiaries included children of full blood, half blood and/or step-children or perhaps not even being born at the time of preparation of the will. A legal adviser would be more likely to identify any potential errors as regards the way in which beneficiaries are identified, thereby avoiding the need for the executors to seek declarations from the court following the testator’s death as to who should inherit their estate and the additional costs of doing so.
As indicated above, the most common reason for the validity of a will being challenged is a failure to comply with the requirements of the Act. However, there are many other grounds upon which a will can be challenged including the following:
One of the pitfalls of a DIY/online will is that there is no recorded documentation demonstrating the testator’s capacity at the time of execution of the will, their knowledge and approval of the will and importantly, their wishes as regards the contents thereof and the distribution of their estate.
Under English law, testators still have testamentary choice. As such, they are free to leave their estates to whomever they choose, albeit subject to the provisions of the 1975 Act as regards the question of reasonable financial provision. However, this does not prevent claims being brought after a testator’s death regarding the validity of the will as set out above. Legal advisers will be able to give consideration to these potential claims and provide testators with advice regarding the same which, whilst not preventing any claims from being made in the future, may result in the failure of any claims and at the very least mean that the testator’s wishes as regards the distribution of their estate will be before the court.
Legal advisers can also prepare a letter of wishes for the testator to sign. These are not legally binding on trustees and executors or indeed the court but again, they can provide a useful insight into the mind of the testator and the reasons why they prepared their will in whatever format they did and can often therefore be useful evidence in the successful opposition of any claim to challenge the validity of the will, particularly any claims under the 1975 Act.
The preparation and execution of a will is a very important process. There are strict legal procedures which must be adhered to if the will is to be held valid and many other ways in which the validity of a will can be challenged. Online or DIY wills are unlikely to give consideration to any of these issues and this is more likely to result in a will subsequently being held to be invalid. If a will is found to be invalid, this would result in the testator’s previous last will being entered into probate (assuming that will is found to be valid) or, if the testator had not made any previous will, the testator would be held to have died intestate and their estate would be distributed in accordance with the intestacy rules. However the estate is distributed, this may often mean that it is not distributed in accordance with your wishes.
Although instructing solicitors to prepare a will means an additional outlay for fees, a professionally drafted will should ensure that the will complies with all the legal formalities of the Act and is valid in other respects, such as the need for the testator to have testamentary capacity to execute the will. Consideration will also have been given to the question of tax planning and any other wishes that you may want to set out in your will. This initial outlay can often therefore be invaluable in ensuring that your needs are met and that your estate is distributed as intended.
Although digital technology has been adapted to our lives in many ways during the pandemic, parties wishing to make a will should still consider the expense of instructing a solicitor in the traditional way. Opting for an online or DIY will can be risky business as one size does not fit all. You should always do your research and consider the options carefully, as a cheaper will may be more costly in the long run.
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Sophie McDonnell is a member of the firm's probate disputes team and can assist you with any disputed matters surrounding a will. If this situation arises, please contact Sophie on [email protected] For assistance in connection with the preparation of an updated will, please contact a member of our wealth protection team on 0118 952 7227.
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