What are the dangers of a homemade Will?

  • Posted: 30th August 2017
  • Author: Noel McNicholas
  • Link: Permalink

If you want to dramatically increase the risk of disinheriting loved ones or loved causes, a homemade Will is a good place to start.

A Will is not just the last instruction for what will happen to you and your worldly goods after death.  It also represents a life’s work and tells the world something about who you were and what was important to you - that you wanted to look after your family, support a cause, to ensure a friend was remembered by a special token or to have your ashes spread over a cherished view.

But, if you use a homemade Will there’s a real risk the most important document you ever sign may not do what you actually intended or, worse still, may be entirely invalid.  It could turn out to be a well-hidden time bomb so that what started out as a modest money saving device eventually ends up a hard fought legal battle which sadly you can no longer influence.  If you inadvertently make an invalid Will and have no earlier existing Will, an intestacy arises and your Estate will be distributed in accordance with a strict formula set down by law.  In those circumstances you may find your Estate passes entirely to persons you rather it did not or may not even know.  Or there may be an earlier valid Will still in existence which is long out of date and does not reflect your final wishes.

Let’s start with the modest benefits of a homemade Will.  Firstly, there’s the cost.  High street or online retailers can sell you a Will writing kit for about £10 which will include “expert guidance” so you don’t need to incur the expense of instructing a solicitor.  Also, you can do it from the comfort and privacy of your own home rather than taking a trip into town and then explaining your family background to a solicitor you may or may not know.  Once you have filled out the forms you then proceed smoothly to asking two people to witness the Will.  You have saved £150 or perhaps more, depending on the complexity of the Will.  Now you can get on with more important things like how to spend the £150 you have just saved.

But what are the downsides?  It’s rather more complex to explain the very many ways a homemade Will is potentially a bad idea and why problems with their preparation and execution crop up again and again.

Perhaps one of the easiest ways is to trip up at the most simple stage, the signing or execution of the Will.  We often see the validity of homemade Wills called into question because they did not comply with the rules concerning execution and witnessing.  These long established rules are not particularly complex but observing the formalities is still crucial.  What might appear to a lay person to be no more than a minor technicality can have serious consequences if not correctly observed.

In Royal National Institute for Deaf People and Others v Turner (2015) the Court determined the homemade Will in a £1.8m Estate was not signed by the testator before the witnesses.  Those witnesses were instrumental in leading the Court to conclude it was invalid.  But this only followed a doubtless very expensive five day trial with expert handwriting evidence and much emphasis placed on the recollection of the witnesses to a Will in which they had no interest, signed by them many years beforehand.  A solicitor will ensure the Will is properly executed.

The Will must of course reflect what is actually intended.  We live in a much more complex society where second and blended families are common.  Drafting a Will to accurately take account of complex family dynamics is trickier than it first seems.

Then there are the additional concerns regarding Inheritance Tax or who is to the be guardian of your children.  The opportunities to get these important matters wrong are numerous and varied.   These are important matters which a solicitor will address.

But in order to advise you properly the solicitor must broadly know your family background and the size and nature of your Estate.  This will involve perhaps one or more meetings but it is well worth it and surprisingly cost effective.  If you have difficulty getting about, the solicitor can even come to you.

The solicitor will also be able to advise you about matters which you may not have given much attention.  For instance, claims against the Estate under the Inheritance (Provision for Family and Dependants) Act 1975 are increasingly common and throw up a raft of considerations which the solicitor can address with you.  What’s more, in the highly unlikely event something does go wrong, your solicitor is insured.  All this, give or take, for £150.

It’s almost inevitable professional advice will be required at some stage in your life and preparation for your Will should be no different.  Even though it’s no longer your problem once you’re gone, preparing for death is something which should mean seeking professional advice.  And, when it touches everything you’ve worked for, that advice can be the difference between what you intended and what you most certainly did not, so it is money worth spending.

If you have any concerns regarding the validity of a Will, please contact Noel McNicholas on 01455 620805 or nm@thomasflavell.co.uk, and if you are looking to make a Will please contact one of our offices.

A photo of Noel McNicholas

This article was written by Noel McNicholas. If you would like further information on the issues raised contact Noel to discuss in more detail.

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