Not Just a Piece of Paper

I recently read an article in The Sunday Times which sought to explain the different ways in which a Will may be prepared. I was very interested to see how the journalist, who had not had previous experience of Wills, found dealing with this particular area of law which even to the educated can be tricky to say the least. What she found was not only can a Will be done via a “Will Pack” from various high street or online providers, but also when approaching Solicitors the costs were not prohibitive and the service provided covered many additional areas (such as Powers of Attorney, Care Fees, and Inheritance Tax).

In practice, I come across from time to time the “Will Pack” or “DIY Will” after someone has died and the family sit in front of me expectantly hoping that everything is in order. I have to tell them, sometimes, that the basic Will formalities have not been followed (such as proper witnessing) which can be very easy to get wrong without guidance. For example, if a beneficiary witnesses a Will they cannot take their gift unless the Will is witnessed by 3 witnesses rather than two. Furthermore, whilst a Will can have outwardly all the formalities in place, what about the mental capacity of the person making it? Further, could it be alleged taking into account the content of the Will and who the drafter was, that undue influence was being exerted? If such allegations are made and formalities not followed this makes the already difficult process of administering a deceased’s affairs even more difficult, creating additional stresses and increasing costs.

It may be that with different drafting a tax liability could have been mitigated or even a claim by a disgruntled relative avoided. It is noteworthy to say that claims against deceased estates are at an all-time high, and whilst a claim may never be prevented entirely, with careful Will drafting and associated advice there are ways of managing potential problems before it’s too late.

It can sometimes be difficult when dealing with your own affairs. In order to be objective, having a solicitor there to point out the pitfalls of potential claims and tax implications and then give genuine and non-partisan advice on how drafting your Will in a particular way could negate problems is surely worth the additional fee of the professional?

When something goes wrong and when a Will cannot for obvious reasons be changed without significant and expensive hassle after the death, blame may sadly lie with the Will preparer.

 George Persson TEP is Head of the Wills + Probate Department at Thatcher + Hallam LLP – and has been a full member of the Society for Trust and Estate Practitioners (www.step.org) since 2011. He is also subject to the STEP Will Writing Code.

Want to speak to George direct about any of the issues he has raised in this Blog? Or to discuss Thatcher + Hallam’s Will preparation service and to obtain a quote?  Then call him on 01761 414646 or at gpersson@th-law.co.uk]