Having a Will is important no matter how wealthy you are or how many possessions you own. A valid Will makes sure that your property and money will pass to those you want to receive them after your death.
Once you have decided that you want to make a Will, your first consideration should be, how best to go about it? There are so many resources available online that it could strike you as a bit of a minefield and so you need some expert help, or it could swing the other way and make you feel as though you know exactly what you need to do to make a Will yourself.
If your estate and your wishes are very straightforward, a home-made Will could be perfectly adequate for you. However, do not forget that your Will only takes effect when you die: You will no longer be around to solve any issues that may arise from it.
Here are examples of five common pitfalls that we see in practice, resulting from home-made Wills:
1. The Will is invalid
A Will can of course be written in your own handwriting, but we often see that a home-made Will is not executed correctly. It may be signed but not dated, or it may not have been signed at all.
The Testator may not realise that he, she or they require two independent witnesses to sign the Will at the same time, for example. We might see that there are no witnesses or one witness, both of which make the entire Will invalid.
Even where there are two witnesses and all have signed correctly, the witnesses cannot be beneficiaries or the spouse or civil partner of a beneficiary, otherwise the gift to that specific beneficiary will be invalid.
2. The Will does not deal with all of the Testator’s property
When the Testator thinks about making a Will, he, she or they will have to consider what assets make up his, her or their estate. The Testator may have in mind the tangible assets that he, she or they own, such as a property or a car, and earmark those items for specific beneficiaries.
If the Will includes those specific gifts, but does not include clauses that deal with everything else, to “mop up” what is referred to as the residue of the estate, that part of what is left after the specific items have gone will pass to predetermined beneficiaries in accordance with legislation. That is, they may pass to members of the Testator’s family he, she or they did not intend to include. Furthermore, it adds a layer of complexity and expense that could have been avoided with a properly drawn Will.
Even if the Testator’s wishes are quite simple and a gift of the residue is included, there may be other property not covered by the Will. If he, she or they own any property outside of the UK, for example, there are issues of jurisdiction and the law that will apply to what happens to the said property after death. Another scenario is in the case of jointly owned property, which may not be possible to leave to a specific beneficiary other than the joint owner, without further steps being taken. A specialist lawyer can give advice on ensuring that the property will pass in accordance with the Testator’s wishes.
3. The Will is ambiguous and unclear
Despite the best of intentions, a home-made Will may include typing or spelling errors, or have descriptions of assets, beneficiaries or wishes that directly conflict with one another. The Executors will have to try and decipher what was meant, and potentially prove it if there is a dispute between beneficiaries, which is inherently difficult to do after the Testator’s death.
Of course, a specialist lawyer can make mistakes too, but in the round they are less likely to do so given their experience of drafting Wills. A lawyer is likely to keep a detailed record of the Testator’s instructions, though, which will increase the prospect of having sufficient evidence to prove what was intended, if faced with a dispute (or, indeed, a negligence claim).
4. The Will does not account for significant changes in circumstances.
What comprises a Testator’s estate at the time that the Will is made is only a snapshot of what it could be like when death occurs. Additional assets may have been acquired, such as property the Testator may have inherited from a family member. The bank account may have changed. The car may have been upgraded.
A Will is ambulatory in nature and thus can be changed as many times as the Testator may choose before he, she or they die, to account for these changes. However, if the Testator does not do so, certain gifts may fail and the items may not pass to the persons intended.
More fundamental than this, however, are the wide range of life events that may occur which can impact on a person’s Will. Wills should be reviewed carefully after marriage, divorce, births and deaths of family members or intended beneficiaries to ensure that it remains valid and still effectively deals with the Testator’s wishes.
5. Protection against disputes
A specialist lawyer will be trained and experienced in the types of disputes that can arise in relation to a person’s Will. This knowledge is then applied when taking instructions from a person who wishes to make a Will; not to change the Testator’s mind about what they plan to do, but to highlight any potential pitfalls and to build evidence as to their reasons for so doing.
Further, a fundamental part of a specialist lawyer’s role is to consider whether the person instructing them has sufficient mental capacity to make a Will. They may advise on obtaining an independent report from a medical expert as to capacity if there is anything contained in their wishes that could result in a challenge. Again, this will assist in building up the contemporaneous evidence to support the Testator’s wishes, which can be relied upon after his, her or their death and in the event of a claim.
A home-made Will may not be supported by such a depth of evidence behind the wishes it contains and if there is anything therein that could be considered controversial, the Testator should give serious consideration to obtaining specialist advice.
What about the cost though?
One thing that may put you off from instructing a solicitor or other legal expert to prepare your Will is the cost. However, there may be options available to limit the cost. For example, there are several firms who work in partnership with various charities offering a scheme whereby you can have your Will prepared in return for a donation, either at the time or in your Will itself. It may pay you to have a look online at the website of a charity close to your heart (no pun intended), or your preferred firm of solicitors such as Wolferstans, to see if this is a scheme offered.
The common denominator with all the potential issues described above is the cost involved in attempting to rectify them. The costs will be borne by your estate, thus leaving your intended beneficiaries with less than they might otherwise have expected to receive. Weighing the cost of
expensive litigation against the few hundred pounds required to instruct a specialist and regulated lawyer to make your Will for you may be enough to persuade you against your home-made Will.
Should I be worried about Tax?
The topic of Inheritance Tax may be outside of the scope of this article, but it is a real concern for a few individuals when they consider making a Will. If you have a very small estate then you may not need to be too familiar or conscious of such issues, but in any case getting tailored advice from a specialist lawyer before making your Will can help to mitigate any liability you may have for Inheritance Tax or simply put your mind at rest.
The answer is simple!
If you are interested in making a Will, then obtaining specialist independent advice could prove hugely beneficial to you and your family.