What can go wrong with a DIY Will?

The estate planning and probate solicitors at Evolve Family Law see a lot of Wills; either writing a first Will, reviewing and updating Wills after a significant life event, or sorting out probate and administering the estate of someone who has passed away.

Some of the Wills that we review and rewrite are DIY Wills. Executors named in home-made Wills ask us to sort out the estate administration and, in some situations, change the Will by preparing a deed of variation.

Our experience advising on probate and home-made Wills helps us identify common problems with DIY Wills.

Our North West Will and probate solicitors can help if you need assistance with reviewing a Will or with estate administration.

Contact Evolve Family Law. 

Why problems with DIY Wills are a problem

The problem with DIY Wills is that you often don’t realise there is an issue with the Will until the Will maker has passed away. It is frustrating for probate lawyers tasked with helping the executors of the Will because the Will maker went to the trouble of making a Will and had no idea that their Will was invalid or did not do what they intended.  

Problems with homemade Wills can lead to:

1. The Will is invalid, and the estate is left to the beneficiaries named in an earlier Will.
2. The Will is invalid, and if there was no earlier Will, the estate is inherited by family members in order of preference as set out in the intestacy rules. 
3. The estate pays more in inheritance tax than it might have done if the Will-maker had taken estate planning advice.
4. Family and friends who are disappointed with the contents of the Will feel more confident in challenging a DIY Will rather than one drawn up by a professional Will solicitor.
5. A time-consuming exercise to prove that the DIY Will is valid. This can cost thousands more than the couple of hundred pounds that the testator saved by writing their own Will. 
6. Family members being distressed by their lack of inclusion in a Will when the Will maker probably omitted them because of Will writing technicalities. For example, naming specific grandchildren in their Will and not updating the Will when a further grandchild was born or not naming a stepchild in the Will, as the testator assumed that referring to ‘their children’ sharing the estate would include a stepchild brought up by them as their own child, but not formally adopted.
7. A reduction in the value of the estate because Will challenges can reduce the amount the beneficiaries receive.
8. Additional stress for the bereaved. Will challenges can even result in long-term family estrangements if family members dispute whether the deceased had the capacity to make their Will, or argue that the Will did not make reasonable provision for them. 
9. It taking longer to sort out the administration of the estate and pay the beneficiaries because court proceedings were needed to clarify what the testator meant in their Will or to resolve an inheritance dispute.
10. The beneficiaries need to agree to a deed of variation to change a Will. This is only possible if the beneficiaries agree (or are all old enough to agree) and they are within the time limit. 

Common DIY Will problems

Not all DIY Wills are problematic, but the top ten common DIY Will problems are:

1. The Will was not witnessed correctly.
2. The witness chosen by the testator should not have witnessed the Will.
3. The Will terms are not clear.
4. A later marriage revoked the Will.
5. The Will maker left property in their Will that was not included in their estate, so the gift fails.
6. The testator did not demonstrate they had the capacity to make the Will in circumstances where there was a realistic prospect that their capacity could be challenged or duress alleged.
7. The testator did not fully understand the impact of divorce on their Will.
8. The Will was too specific. For example, it included specific bank accounts that had been closed or property that had been sold by the date of the Will maker’s death.
9. The testator did not make any substitute Will provisions, so their estate had to be distributed under the intestacy rules.  
10. The Will did not say what would happen to the residuary estate.

The impact of DIY Will problems 

Some home-made Will problems are minor inconveniences that can be put right at a modest cost, whilst others can render the Will invalid and worthless. 

Here are some examples of how a common home-made Will can have unintended consequences:

1. Incorrect signing – for a Will to be valid, it must be signed by the testator in the presence of two independent adult witnesses. The witnesses cannot sign the Will without having seen the Will writer execute their Will. Both witnesses must be present at the same time; one cannot sign the document later.
2. Wrong witness – a beneficiary (or their husband, wife or civil partner) cannot witness the Will. If they do, the Will may still be valid, but the witness won’t be allowed to inherit their legacy or share of the estate.
3. Unclear clauses in the Will – the clause may have had an obvious meaning to the deceased, but the court may rule otherwise. For example, a bequest to ‘my friend, Jack.’
4. Later marriage – if the deceased got married after executing their Will, the effect of the marriage is to revoke the earlier Will unless the Will was specifically said to be made in contemplation of the marriage or civil partnership.
5. Property not included in the estate – a Will maker may leave his share in the family home to his children in their Will. However, if the family home is owned as joint tenants with their spouse, the right of survivorship means the spouse automatically inherits the house, despite the terms of the Will.   
6. Capacity to make a Will – where a deceased is in poor health, elderly or vulnerable, a Will solicitor will advise on the importance of evidencing their capacity to make the Will to reduce the risk of the Will being successfully challenged.
7. The impact of divorce – a Will maker may not realise that their divorce means their former spouse is treated in law as having died before the testator and therefore will not receive a share of the estate. If the couple separated but did not divorce, the legacy remains valid.
8. Too much detail- if an effort is made to provide detail, some DIY Wills are too specific. For example, leaving a property to a child rather than a percentage of the estate. If the property was sold before the testator died, the child will not be entitled to a share of the estate.
9. No substitutes – Will solicitors try to include substitute clauses so there is an alternative beneficiary if the first choice cannot receive the legacy. Many homemade Wills do not include a substitute and are not regularly reviewed.
10. Residuary estate – a DIY Will writer may think it is unnecessary to refer to the remainder of their estate. However, the residuary is often sizeable and will pass under the intestacy rules if the Will does not mention it.

Will solicitors at Evolve Family Law 

The private client lawyers at Evolve Family Law can help with:

1. Reviewing a homemade Will. 
2. Advising on a first Will.
3. Assessing Will risks, such as capacity issues or the risk of a Will challenge.
4. Estate planning and lifetime gifting.
5. Wills made in contemplation of marriage or second marriage.
6. Wills to protect unmarried partners.
7. Wills to safeguard children and protect their interests.
8. Will reviews after a divorce or a relationship breakdown. 
9. Estate planning and Wills for small business owners.
10. Probate services.
11. Estate administration.
12. Advising executors or potential claimants about claims on estates and Wills or inheritance disputes.
13. Deeds of variation.  

Our website includes cost information on the cost of a professionally drawn-up Will. In most situations, we can provide a Will for a fixed fee, offering cost certainty and peace of mind for a testator and their loved ones.  

Contact Evolve Family Law to discuss how our private client solicitors can help you.