In difficult financial times it is understandable that some people decide to make a DIY Will without involving a qualified legal practitioner but this can create significant risk. Amy Pettitt, a solicitor in the probate department at Fraser Dawbarns, discusses some problems that can arise.
Will packs are widely available at a relatively low cost and offer a template for individuals to complete. There is also a considerable amount of free advice and sample Wills on the internet for individuals trying to prepare their own Wills.
There are actually very few legal requirements for creating a valid Will, these are laid out in the Wills Act 1837. The Will has to be hand written or typed, on any material and must be signed by the testator (the person making the Will) in the presence of two independent witnesses who also sign it. Providing these conditions have been met, the Will is legally valid.
However, while this appears straight forward, the exact requirements are quite technical and can be easily misunderstood even when the testator is following a template. If the legal requirements have not been met, the DIY Will may not be valid. For example where the testator has signed the Will on his own without two witnesses being present or where 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 the intestacy rules, a strict set of rules that may not be in accordance with the testator’s wishes.
Even if the Will appears to meet the formal requirements, there can be complications in obtaining the grant of probate necessary to administer the deceased’s estate. The Probate Registry may require additional evidence before they are satisfied that the legal requirements have been met.
This can happen when the testator has not used the specific wording that a legal practitioner would use to show that the formalities have been complied with when drafting the Will. This can result in delay and additional costs. There can 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 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 DIY 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 a person will ever make. It is important that any Will you make is valid, to ensure that your wishes are upheld and to minimise the expense and stress for your family. The cost of instructing a legal practitioner when writing a Will is far lower than the cost of dealing with an estate when a DIY Will has gone wrong!
This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However, no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek our specific advice. Fraser Dawbarns LLP are always happy to provide such advice.
For advice on this or any other legal issue contact Fraser Dawbarns today and see how we can help you.
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