The last 2 years have been very unusual and it has led to several lockdowns and a lot of people self-isolating, with a climate of social distancing and avoiding mixing with people outside of your own household. So, whilst there has been a rise in the demand for Wills there has also been a worrying rise in the number of people who are attempting to create ‘DIY’ Wills – using off the shelf or online tools or by simply writing down their wishes.
I know that it can feel safer doing it that way but there are a number of reasons why this is not always the right choice.
The Society of Will Writers give these as the top reasons why DIY Wills fail the probate process:
1. Your estate planning might not be as simple as you think
If you own property abroad, run/own a business or operate a farm or have a large estate and you would like to plan for the best inheritance tax (IHT) outcome you might not be in the best position to write your own Will as you would benefit from taking specialist advice on all of those matters.
A professional could advise you to make sure you have an efficient estate plan in place. This could mean using more complex planning that you may not have been aware of such as trusts and making sure you’re aware of the IHT allowances available to you and how to make the best use of them.
2. You might not be doing enough to protect your estate from claims
If you are planning on excluding someone who might expect to benefit from your estate you may not realise that the law allows certain people to apply to the court after your death for some provision from your estate if your will failed to make ‘reasonable’ provision for them. Professional advice will benefit you here. A Will writer will be able to tell you who may have a claim against your estate and what can be put in place to mitigate their chance of success.
3. The Will might not be valid
For a Will to be legally valid it has to meet certain requirements set out by law, specifically section 9 of the Wills Act 1837. If a will isn’t signed and witnessed correctly then it won’t be valid and it will have no legal effect.
Getting the witnessing right is key, and with the Covid-19 situation at the moment this is causing some difficulties. You need two witnesses to watch you sign your will and to then sign themselves afterwards.
4. The will might be valid but certain gifts might fail
Your DIY will might be correctly signed and witnessed but there is still a danger that your wishes won’t take effect or parts of your will might fail. The main issues you could face are:
• If one of your beneficiaries or their spouse or civil partner acts as a witness to the Will then any gift to them will be void.
• The wording used in the will is ambiguous or uncertain.
• The Will attempts to gift your ‘share’ in a property that you own with someone else, but the property is owned as joint tenants so the gift in the Will fails.
• The residuary estate is not properly dealt with so some of your estate passes on intestacy – this is where assets pass to certain relatives in a hierarchy, so not necessarily to the people you wanted to benefit
Remember, if something in your will is uncertain you won’t be around to provide any clarity to resolve any issues. That’s why it is so important to make sure the wording in the will is clear, certain, and the correct legal terminology is used where appropriate.
5. You didn’t appoint someone to deal with your estate after death, or to care for your minor children
A Will should appoint executors to deal with your estate after you pass away. They will be responsible for dealing with your assets, your debts, declaring and paying any relevant taxes, and ultimately making sure your estate passes on to the people you want it to. It is important you appoint someone you trust to take on this role, otherwise someone will be appointed after your death and that person may not be the most suitable executor.
If you have minor children you have probably given some thought to who you would want to care for them if anything happened to you. It is a common misconception that minor children will automatically pass into the care of their godparents or your next closest relatives, but this isn’t the case.
If you are worried about a face to face meeting, the initial consultation can be conducted over video chat or sometimes phone – there are lots of options available so if you’d like to talk about your own Will and how I can help please do not hesitate to get in touch for a free, no obligation consultation on firstname.lastname@example.org or 0115 878 0417.