DIY Wills have become increasingly popular. They are easy to buy off the internet or in high street stores for as little as £10 or £20. These versions offer generic templates for completing Wills and together with free advice and sample Wills that are available on the internet, it can be an attractive option for people looking to draft a Will without legal advice.
Where the Will required is for a straightforward estate, then using a DIY Will may be okay. However, if the estate is considerably larger or the beneficiaries more complicated (for example, children from previous marriages), then they can be a false economy. A Will is one of the most important documents that a person will create- not just for yourself but also for your family and loved ones. Although they can be appealing due to their low price, this can be a risky decision since they can easily be invalidated if the correct procedures are not followed. An estimated 40,000 families a year suffer from prolonged probate as a result of DIY Wills going wrong, resulting in additional fees being taken from the estate due to these issues. Here we discuss the consequences of a DIY Will.
What are the common mistakes?
Drawing up a legally valid Will is actually quite straightforward. It needs to be in writing and signed by the person making the Will in front of two independent witnesses who sign also sign. However, there are various technicalities and even following a template can mean that these are not correctly followed, resulting in an invalid Will. If a Will is found to be invalid, then it will not be followed on the death of the testator and intestacy rules will apply, which may not distribute the estate in the way that the testator wished.
Many things can invalidate a Will or cause issues, including:
- The Will not being properly witnessed – this is the most common mistake of all but will render the Will completely invalid.
- Names being misspelt.
- The document not being validly signed by the testator.
- Failing to draw up a new Will after a marriage- marriage automatically revokes any Will previously written, unless it specifically states that it is written in contemplation of marriage. You can find out more about this here.
- Failing to use the correct wording – generally, people creating DIY Wills do not use the legal wording required to ensure that the person's instructions are binding.
- Assets held abroad will cause issues since DIY Wills are not recognised abroad.
- Family members living in your home that are not beneficiaries need to be correctly covered in the Will.
- Familial circumstances not correctly accounted for- such as children following a divorce or those in a blended family. The Will needs to consider those financially dependent on the testator and often this needs to be written into a Trust.
- Where a person wants to disinherit a family member in their Will, they need to make sure they have followed the correct legal process, or this person can make a claim against the estate after the testator’s death and could be successful.
What can happen if there are issues with a DIY Will?
Granting probate
It is also possible for issues to arise on the grant of probate, where further information is required to prove that the legal requirements have been complied with. For example, by not using the formal wording that is generally required could indicate that the formalities have not been correctly adhered to, resulting in additional costs and delays.
Administration of the estate
After probate has been granted, further issues can arise in relation to administering the estate if the wording of the Will gives rise to any uncertainty. The executor of the Will has to deal with all issues that arise. If the beneficiaries are frustrated by complications this can put a strain on relationships (which are often familial). It is more likely that there will be issues with a DIY Will that the executor will need to try to overcome and this can lead to lengthy and costly delays.
Where an administrator or executor of a Will makes a mistake then, even if this was completely innocent, it can result in them being financially responsible for any loss caused to the estate. Where a DIY Will has been used, then it can take a lot of time and effort to determine whether the administrator or executor has, in fact, breached their duties to the beneficiaries. Again, this adds to the complexity and time taken for an estate to be distributed.
Tax
For larger estates, there will be issues relating to tax planning and inheritance tax. These are complicated areas of law that require specialist knowledge. Those using a DIY Will kit may not be aware of the implications that this can have on the assets they leave to their loved ones. They may not be aware of the current HMRC policy on valuations of estates and any recent tax tribunal decisions and the impact this can have on your wishes.
The creation of a valid Will is one of the most important legal documents that most people will complete in their lifetimes. It is imperative that it is done correctly. By taking proper legal advice from a qualified legal professional, individuals will ensure that their wishes are upheld and their family protected during what is already a stressful and challenging time. The amount saved by not using a qualified lawyer could be negated by the costs that arise if things go wrong with a DIY Will.
Contact our Wills and Probate Solicitors, London
Family law cases involving Wills and distribution of assets can become very complex where there are various interested parties, including in-laws, former spouses and children.
Lewis Nedas' Wills and Probate Lawyers are equipped with the knowledge and experience needed to handle estates of any size. We offer a tailored, focused review of your family circumstances to determine how best to navigate individual relationships and appoint effective administration of your estate. Please contact us on 020 3811 3600 or complete our online enquiry form.
