Pitfalls of DIY Wills
This is the first of three articles designed to highlight the Pitfalls of DIY Wills, Lasting Powers of Attorney and Probate. Please keep an eye out for further articles being posted over the coming weeks.
As a Private Client lawyer who specialises in wills, I am often asked the question, why do I need a solicitor to prepare a will when I can create my own DIY will?
Generally speaking, although it can be cheaper to prepare will without the expertise of a professional, it is also very easy to get it wrong and a simple mistake can often result in paying a much higher price in the long run, when your executors are faced with having to put things right after the event. You also run the risk of leaving those important to you exposed to uncertainty at a time of high emotional stress.
You should also be aware that using the ‘cheaper’ option of a “will writer” (often found advertising outside supermarkets or in local papers) is far from ideal. Most will writers generally do not have a legal background and they rely heavily on will writing computer software. It will, therefore, more often than not, be the case that the person preparing your will, will not have extensive legal knowledge and, while this might be adequate if your circumstances are completely straightforward, you will not benefit from the additional value your solicitor will provide through their extensive understanding of the complexities of the law.
Some of the common pitfalls associated with DIY wills that crop up quite regularly in practice are:
- Execution – if your will has not been signed and witnessed properly, your will can be deemed invalid. Although the rules for executing wills are not complicated, they do have to be followed exactly and it is often an area that can go wrong very easily. If the will has not been executed in the right way, then it will be invalid and none of the provisions will apply. This can then result in your estate being distributed in accordance with the law of intestacy, which could be contrary to your wishes. This is one area in which the executors of your will may end up having to be involved in additional work as part of dealing with the administration of your estate. They may, for example, end up having to contact the witnesses of your will for additional documentation to support a probate application setting out the exact the circumstances in which the will was signed. Likewise, if your signature is not clear or if the will appears to have been dated incorrectly (which can also happen quite often), this may result in the need for further work to be carried out as part of dealing with your estate, which results in more cost to your estate.
- Witnesses – sometimes it is not only the signing of your will that can go wrong but the choice of witnesses. It is so important that the witnesses are completely independent otherwise it can cause issues resulting in a beneficiary not being able to receive their gift under the will at all (whether this is a specific or cash gift, or a share of the overall net value of your estate).
- Wording – the legal terminology used when writing wills can often be difficult to understand, which can result in getting the wording of your will wrong if you attempt to write your own will. If the wording of your will is wrong or open to interpretation, you run the risk of your wishes not being fulfilled. If this is the case, there are two ways of looking at it. It might not be a problem if everyone involved agrees on what the original interpretation was meant to or intended to be and how the estate is to be divided. If, however, there is an argument or a disagreement and one person stands to gain or lose over another (depending on how the choice of words are interpreted), then there might be lengthy, stressful and expensive arguments involved in trying to put things right. It is, therefore, very important to ensure that the terms of your will are clear and precise so there is no room for intentions being misinterpreted. It is not uncommon to have to instruct a barrister to determine the interpretation of clauses in a will if, no common interpretation can be agreed upon between the beneficiaries. If the beneficiaries include minor beneficiaries, then it will not be possible to reach an agreement without involving the Courts.You may, therefore, ask what are the advantages of appointing a solicitor to prepare your will?
- Bespoke advice – everyone’s circumstances are different. If, for example, you own property abroad or have an interest in a business, such scenarios would not generally be covered by a one-fit all DIY option. Your family circumstances might also be complex in which case you might need more bespoke advice and a will that is more tailored specifically to your personal circumstances.
- Legal knowledge – a solicitor’s job is to help guide you through the will making process. We would, for example, set up an initial meeting with you to ensure we have fully explored your circumstances. The will would then be prepared and once approved, would be signed usually in our presence. By using a solicitor, you will reduce the risk of invalidating your will and will ensure that your wishes are fulfilled.
- Legal expertise – if you have a reasonably complex estate or if your family circumstances are complicated, it is often beneficial to discuss these circumstances with your solicitor in order to determine how best to achieve what is intended. These types of discussions are invaluable as your solicitor will highlight points you may not necessarily have considered before.
In summary, it is not, therefore, always to do with how the will is written but more so, that the advice a professional can give you, to ensure that you make the right decisions for you when it comes to matters such as who to appoint as your executors and trustees (would the people you have nominated, for instance, know what would be expected of them and would they be have the time to carry out their duties); who to appoint as guardians for minor children (whether the people you have nominated are best placed to take on those responsibilities) or whether some a form of trust arrangement in your will might be beneficial in order to protect some of your estate or to provide beneficiaries with protection if, for instance, they are under the age of 18 or have a learning disability.
Your solicitor is there to ensure that you have considered all points relevant to your personal circumstances. Your solicitor will safeguard that your will is drafted clearly, leaving no room for mistake or uncertainty so once your will has been prepared, you will have peace of mind in knowing that your chosen beneficiaries will be looked after as intended when the time comes.
Of course, having a will prepared by a solicitor does cost money but the cost of making the will now will always be much less than the cost of correcting a will that goes wrong afterwards. If you would like to discuss making a will in more detail, please do get in touch with one of our expert lawyers.
This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.
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We are solicitors in Camberley, Wokingham and London. In 2019, Herrington Carmichael won ‘Property Law Firm of the Year’ at the Thames Valley Business Magazines Property Awards, ‘Best Medium Sized Business’ at the Surrey Heath Business Awards and we were named IR Global’s ‘Member of the Year’. We are ranked as a Leading Firm 2020 by Legal 500 and Alistair McArthur is ranked in Chambers 2020.