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The dangers of drafting your own Will

15 June 2020

A look at some of the most common issues with poorly drafted Wills.

The primary function of a Will is to serve as a medium by which an individual specifies who he or she wishes to receive their property and possessions in the event of his or her death.

If an individual dies without a valid Will, they are said to have died 'intestate'. In the absence of effective legal claims on the estate, which can be extremely costly and stressful, everything will be distributed as prescribed by the intestacy rules. The intestacy rules do not take account of the deceased's wishes or their family circumstances and can produce a result which the deceased would never have intended.

There are many intricacies regarding the drafting and the execution of Wills that are not readily apparent to those who are not experienced in their preparation. Despite this, there is very little regulation on exactly who is allowed to draft a Will and in fact anyone is technically ‘allowed’ to do so.

The inadvertent invalidity of a Will can have devastating consequences and can, sadly, lead to bitter family conflicts.
The matters discussed below outline some of the most common issues with poorly drafted Wills, the importance of using a solicitor and the potential for significant costs, stress and family disharmony which can be caused by mistakes and/or omissions in a Will.

Execution

There are very specific requirements which must be complied with when drafting a Will in England and Wales. For example, for a Will to be valid it must be in writing and it must be properly signed by the person making the Will (known as the testator or testatrix).
If a Will is not executed properly, the Will is deemed to be invalid, the wishes of the deceased do not apply, and the deceased’s estate will pass in accordance with the intestacy rules.

Witnessing

The testator’s signature must be witnessed by two individuals. Ordinarily, both witnesses must be physically present when the testator signs. There is no requirement for the witnesses to read the Will but they must sign as witnesses at the same time and in the presence of the testator.

The current circumstances surrounding COVID-19 make properly witnessing more difficult however a solicitor will be able to provide you with practical advice tailored to your situation to assist with this. If the witnessing requirements are not property complied with, the Will is invalid

Another common issue can be caused by choosing the wrong witness. Witnessed must be independent from the testator. If someone who is benefiting under the Will acts as a witness, that beneficiary forfeits their inheritance under the Will. This restriction also applies to close relatives of the beneficiary, such as their spouse.

Residuary Estate

Another easy mistake to make is not dealing with the entirety of the estate in the Will. It can be near-impossible to compile a perfect list of assets which will remain accurate for any period of time.

The issue can be dealt with by an appropriate ‘residue clause’, as a catch-all, but such clauses need to be very carefully drafted for them to have the desired affect.
Without a clause dealing with residue, any asset not specifically dealt with by the Will would result in partial intestacy and the ‘missed’ assets will be distributed in accordance with the intestacy rules.

Ambiguity

A failure to include proper clarity in the Will can also lead to partial intestacy. If the testator’s intentions are not clear, the administrators dealing with the estate may have to make an application to Court in order to have the Will construed, this can be extremely time consuming and costly.

Descriptions of assets and even the use of the term “my” before describing an asset can cause serious issues.

Another area where clarification may be needed is where a reference to “my children" is used as use of this phrase alone would not include any stepchildren although it would include adopted children.

Change of Circumstances

Getting married will revoke any prior Will unless the Will has been made and specially drafted in ‘contemplation of marriage'.

Divorce, on the other hand, will not invalidate a previous Will however it will have an impact on how the estate is distributed if provisions have been made in the Will for an ex-spouse. The ex-spouse will also be automatically removed as an Executor, if appointed.

The Risks

As explained above, mistakes in Will drafting can lead to invalidation of the Will, failure of gifts, and partial intestacy.

Although the intestacy rules will facilitate the distribution of the estate, there is no flexibility and the deceased wishes are not accounted for. People who were expecting to benefit under the Will can lose out and others may gain a disproportionate share of the estate.

The intestacy rules do not provide provision for unmarried couples nor step-children and although legal claims can be made by partners/dependants, these are very costly, time consuming and most importantly, there is no guaranteed outcome.

As well as causing problems for family, intestacy can have serious tax implications as any tax mitigation strategies within the Will shall not apply.

Summary

The preparation of a Will is a complicated and technical process and major flaws in a Will are often invisible to the lay person. Solicitors who are trained, regulated and insured should be the default choice for anyone looking to have a Will prepared.

A solicitor will also be able to draft the Will in the context of more general estate planning. If there is any prospect of a dispute over the Will, having a professional to vouch for capacity, knowledge and approval of the testator often proves invaluable.

The current situation surrounding COVID-19 seems to have, understandably, acted as a prompt for many people to either update their old Wills or organise for new Wills to be put in place.

Our firm remains fully-operational throughout the current Covid-19 crisis. We are able to provide services remotely via telephone and video calls.

 

If you would like to discuss any aspect of this article further, please contact Kieran.mcivor@wrigleys.co.uk or any other member of the private client team on 0113 244 6100.

You can also keep up to date by following Wrigleys private client team on Twitter @Wrigleys_PC

The information in this article is necessarily of a general nature. Specific advice should be sought for specific situations. If you have any queries or need any legal advice please feel free to contact Wrigleys Solicitors

Kieran McIvor View Biography

Kieran McIvor

Solicitor
Leeds

Michael Wilcock View Biography

Michael Wilcock

Trainee Solicitor
Leeds

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