Homemade Wills can appear attractive because of their nominal cost and relative ease. They can, however, give rise to a number of problems which may cause considerable stress and difficulty for the testator’s surviving family and, at its worst, result in significant depletion of the estate’s assets in sorting out the disputes that may then arise. Saving money now could cost a small fortune in the future.
Whilst many people are deterred from instructing a lawyer to draft a Will because of the potential cost involved, it should be noted that the costs of rectifying the issues caused by DIY or homemade Wills are usually significantly higher than those incurred by instructing a solicitor at the outset.
To ensure that your wishes are fulfilled, and your loved ones are safeguarded, the best approach is to engage a solicitor to create a Will that accurately reflects your requirements, is properly executed, and, most importantly, legally valid.
The potential pitfalls of Homemade Wills
Creating a legally binding Will within English law requires adherence to specific formalities. Failure to follow the due execution process correctly can lead to potential challenges to the Will’s validity. Many individuals underestimate the importance of these formalities when choosing to draft their own Wills, which increases the likelihood of post-death contests.
Homemade Wills, or DIY Wills, can contain unforeseen errors with severe consequences that may only come to light after the testator’s passing. These errors could render parts or the entire Will invalid. Dying without a valid Will results in being deemed intestate, leading to asset distribution as if no Will existed. This can be distressing for family members who may have had expectations regarding inheritance.
Common mistakes in homemade Wills include not accounting for legal rights or complexities in family structures, like assuming stepchildren will be covered under ‘children’ provisions. Other errors include improper witnessing and signing, lack of guardianship provisions for minor children, failure to appoint executors, forgetting the residuary estate (eg, premium bonds and shares), conflicts of interest when a spouse is listed as both a witness and beneficiary, and unauthorised or improperly enacted alterations leading to invalidity.
Moreover, tax implications such as inheritance tax (IHT) may not have been considered, leaving beneficiaries with unexpected financial burdens. The intricate nature of such estate matters requires careful consideration beyond what a DIY approach can often provide.
A Will without legal advice is usually far more susceptible to challenges from disgruntled family members. Those who feel excluded might contest the Will, citing reasons like the Testator’s lack of capacity or undue influence. Seeking legal advice during the instruction and Will preparation phase significantly reduces the chances of a successful challenge in court.
Are Homemade Wills legal?
Whilst it is perfectly legal to create a homemade Will, it will only valid if it has been properly executed as outlined above. If any of these steps are missed or enacted incorrectly, it is more likely that the Will is challenged, or deemed invalid.
Under the Wills Act of 1837, for a Will to be considered valid, it must meet specific conditions:
- It must be written down and signed by either the testator or someone acting under their direction in their presence.
- The testator should demonstrate an intent for the Will’s execution by signing the document.
- The testator must sign or acknowledge the document in the presence of two or more witnesses.
- Witnesses are required to either attest and sign the Will or acknowledge their signature in front of the testator.
Important considerations include:
- Any written or typed content is acceptable for a Will.
- The testator’s signature can be informal, like a scribble, initial, or thumbprint.
- If a beneficiary or their spouse serves as a witness, the gift will be invalid.
- Witnesses do not need to know the Will’s contents but must verify the testator’s signature.
- While dating a Will is not mandatory for validity, it is crucial for confirming it as the last known or final Will.
The benefits of a professionally drafted Will
Drafting your own Will can leave it vulnerable to challenges due to potential misinterpretations or errors, unlike a professionally crafted Will that minimises issues related to correct formalities and signatures. Furthermore, a self-made Will may lack objectivity and overlook crucial aspects, whereas consulting an experienced professional can offer insights into the implications of your decisions and enhance the likelihood of their proper execution.
In cases involving inheritance tax, a professionally written Will can aid in effective tax management, safeguarding your estate from unexpected financial burdens. Additionally, solicitors often provide secure storage solutions as part of their services, ensuring easy access to the original documents when needed, thus alleviating post-death documentation concerns.
By engaging a solicitor, concerns regarding proper execution can be addressed comprehensively, as they offer detailed signing instructions and guidance throughout the Will creation process.
If you would benefit from the advice of the expert Wills team here at Buckles, please do not hesitate to contact us for an impartial, confidential consultation. We can assist in navigating all the issues detailed above and ensure that your best interests are protected.
