The Covid19 pandemic has led to many of us thinking carefully about the future, with the last year seeing a huge rise in the demand for Wills, and an increase in the number of people making DIY Wills at home, which often fail to meet statutory requirements.
Marnie Thomas, a Trainee Solicitor within our Family & Litigation department, based in our Poole office explains why you need to think twice when considering a DIY Will.
Although DIY Wills may appear to be the more affordable option, just one mistake, such as inaccurate wording, could render the entire Will invalid or result in claims being made against the estate in the future.
Speaking to a private client solicitor is a small price to pay to ensure that your assets are passed on to loved ones in accordance with your wishes and considerable legal costs are avoided later down the line.
Below are some of the dangers of DIY Wills.
Invalid Execution
For a Will to be valid, it must comply with strict legal formalities as to how it is signed and who may act as witnesses to the Will. Not only do long-standing legal formalities apply, but there is now temporary legislation in place allowing Wills to be witnessed remotely.
Drafting your own Will could lead to mistakes and confusion, the consequences of which can be expensive and time-consuming to put right. In addition, most of the online Will template providers are not law firms, meaning they are unregulated, and are therefore not accountable to any professional body if the Will has not been executed properly or fails to meet the requirements of a valid Will.
A Will is likely to be the most important document you will ever make. For this reason, we would always recommend using a qualified and insured legal expert with the necessary knowledge and skill to prepare your Will.
Failure of Gifts
Some might argue that if your affairs are relatively straightforward, a DIY Will makes sense. The reality is that DIY Wills only accommodate a minority of circumstances, and may contain errors or omissions that would only be identified by a professional.
Even a simple gift of “my watch” could be drafted too ambiguously to be enforceable. For example, because the Will failed to clearly describe the watch and the testator owned more than one watch at their death, meaning the watch they intended to pass could not be identified.
Issues can also arise if the Will does not dispose of all of the testator’s possessions, or a beneficiary passes away before the testator. In both cases, there is a risk that assets will pass to people that the testator did not intend.
As private client specialists, we draw upon our experience and expertise to ensure that once your Will is complete, you can be certain that your assets will pass on as you would wish after your death.
Alterations
As your circumstances change over time, it is important to review your Will to ensure it continues to reflect your wishes. Any changes made to a Will after it has been executed may be invalid. Alterations must be made before execution and initialled by the testator and witnesses.
If your Will needs updating, we can help you prepare a new Will or Codicil, making the amendments in clear terms. Not all changes, however, will require a new Will or Codicil, including a simple change of address. If you are unsure about whether your Will needs updating, you should seek advice.
Testamentary Capacity / Undue Influence
Testamentary capacity is a critical factor when making a Will. Issues may arise when someone challenges a Will, alleging that another party influenced the testator when it was written or the testator lacked capacity when it was executed. If either ground can be established, the Will could be declared invalid.
As experts in this area, if we have the slightest doubt as to your testamentary capacity or the possibility of undue influence, we will advise on the best solution for you to limit the possibility of a claim being made against your estate. A Will prepared by a professional, therefore, is usually more difficult to challenge than a DIY Will.
Consequences of an Invalid Will
If a person dies without a valid Will, their estate will be dealt with under the rules of intestacy. The rules dictate a strict order of who benefits from the estate, which in an age of ever-changing family structures, may not reflect the testator’s true wishes.
If you would like us to help you plan your Will, please get in touch with our team of expert private client solicitors today. During the Will drafting process, we can provide bespoke Inheritance Tax (IHT) advice and draft a Will that achieves maximum IHT flexibility.
We also offer Humphries Kirk clients access to 30 minutes of free independent financial advice via HK Financial Advice Service (HKFAS). For further information please visit www.hklaw.uk/financial-advice-service.
Author: Marnie Thomas
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
