In difficult financial times it is understandable that people may decide to make their own Will without involving a qualified legal practitioner. ‘Will Packs’ are widely available at relatively low costs and offer a template for individuals to complete with their wishes. There is also a considerable amount of free advice and sample Wills available on the internet for individuals who want to prepare their own Wills from scratch.
There are actually very few legal requirements for creating a valid Will. The formalities are contained in the Wills Act 1837. Providing it is in writing (typed or hand written) on any material and is signed by the person making the Will (the testator) in the presence of two other independent witnesses who also sign it will be legally valid.
However, whilst the legal formalities appear straight forward, the exact requirements are quite technical and can be easily misinterpreted even where a template is being followed. If the legal formalities have not been complied with the Will may not be valid. For example, if the testator signed the Will on his own without two witnesses being present or the witnesses did not sign the Will.
If the Will is invalid it will not be followed on the testator’s death. Instead the estate will pass to the deceased’s family in accordance with a strict set of rules (the intestacy rules). This may not be in accordance with the testator’s wishes.
Even if the Will appears to comply with the formal requirements, there could still be complications in obtaining the grant of probate in the deceased’s estate. The Probate Registry may require additional evidence before they will be satisfied that the legal requirements have been complied with. This may be required where the testator has not used the specific wording that legal practitioners would use in drafting the Will to raise the presumption that the formalities have been complied with. This can result in delay and additional costs. There could be great difficulties obtaining the evidence necessary to get a grant of probate if the witnesses to the Will have died or cannot be traced.
Even if a grant of probate can be obtained, there may still be complications in administering the estate due to the wording of used by the testator and the unforeseen legal consequences of those words. If there is uncertainty about what the testator meant then the gifts contained in the Will could fail. For example, a Will stating that ‘I leave all my money to my children’ may result in a partial intestacy if the estate also includes a house and shares.
A Will is one of the most significant documents that an individual will ever make. It is therefore important that any Will made by the testator is valid to ensure that the testator’s wishes are upheld and the expense and stress for the family on the testator’s death is minimised. It is strongly recommended that individuals seek legal advice from a qualified legal practitioner in respect of their Wills. The cost of instructing a legal practitioner at the Will writing stage is far outweighed by the costs of dealing with an estate where a DIY will has gone wrong!!
*We are recommended for the following practice areas: Corporate and Commercial, Debt Recovery, Employment, Personal Injury: Claimant, Agriculture and Estates, Contentious Trusts and Probate, Family, Personal Tax, Trusts and Probate & Commercial Property.ServicesContact