Wills + Probate: DIY Wills – the pitfalls

As most of us know, a Will is an exceptionally important document. It decides how your assets and possessions are distributed when you pass away, and which of your loved ones will benefit from your estate. Naturally, you will want to take considerable care and thought in your approach when it comes time to putting your Will into writing.

However, due to ever-rising expenses in our day-to-day lives, it can be understandably appealing to want to cut costs wherever possible. An inexpensive Will-making option that has become increasingly more popular is the “Will pack”, or “DIY” Will. In a nutshell, a DIY Will is a template or kit that enables an individual to make a Will without legal or professional assistance. Some online retailers sell these “packs” for as little as below £10.00.

However, these DIY Wills can unfortunately come with several pitfalls, which it is essential anybody making a Will without legal assistance is alert to.

Considerations

A real risk of making a Will without proper legal advice is that you may not be alert to the following considerations, which are instrumental in ensuring your Will reflects your wishes for your estate after you pass away:

• Executors – An executor is who you appoint to administer your estate upon your death. Do you understand the role of an executor, and does your Will appoint who you would wish to deal with your estate?
• Beneficiaries – A beneficiary can be an individual, organisation or charity who receives assets from your estate. An improperly worded Will could result in your estate not being distributed to your beneficiaries how you intended?
• Trustees – A trustee in a will is appointed to manage assets held within a trust for the benefit of beneficiaries named in your will. Do you understand why trustees may be needed to be appointed, and how many have you appointed?
• Gifts – If you wish to make a specific gift or legacy to an individual in your Will, has this been properly drafted to take effect? You also may have not considered what happens when a recipient of a gift in your Will passes away before you, and how that gift is then distributed.
• Tax – Have you considered the tax position of your estate, such as inheritance tax (IHT) implications? Most DIY will packs do not take this into account. Without proper professional advice, it is difficult to ascertain the tax position of your estate.

Validity

For a Will to be legally valid, there are conditions for signature:

1. The Will must be signed by the person making the Will (the “testator”);
2. Two independent witnesses must witness the testator’s signature. The witnesses must be over 18, be of sound mind, and them or their spouses or civil partners cannot be beneficiaries of the Will.

The testator and the witnesses must all sign and date the Will, with the witnesses signing to confirm that they saw the testator sign the Will, and the testator must see the two witnesses sign.
It is not uncommon for individuals making their own DIY wills to be unaware of these requirements. The Will may not be dated or witnessed incorrectly. In a small number of cases, the testator may not have capacity to sign the document, or they could have even signed under duress or pressure from another person. These factors would render the Will invalid as a legal document.

Disputes

Wills can be very contentious. Recent figures show around 10,000 will disputes and claims occur in the UK annually, with numbers on the rise. Claimants can challenge the validity of a will or bring a claim for reasonable provision under the Inheritance (Provision for Family and Dependants) Act 1975 if they are family member or dependent who feel they have not been provided for by a Will.

In recent case law, DIY wills have been caught in the crossfire of these disputes due to lack of clarity, improper witnessing, and ambiguity or uncertain wording in relation to executors, gifts and beneficiaries. Entering the litigation process due to an uncertain Will could cause those who administer your estate huge expenses in legal and court fees, fees of which would likely to be payable from the estate.

We are here to help

It is very important that you take professional advice when it comes to creating your Will. Our experts can guide you through the will-making process and ensure that your Will is well drafted, valid, and properly expresses your wishes for the future.

If you want to find out further information about making a Will, please contact us on 01761 414646 or enquires@th-law.co.uk for a quote and to be put in touch with one of our friendly team members.