Homemade Wills – The Risks & Benefits

If you want to dramatically increase the risk of disinheriting loved ones or loved causes, a Homemade Will is a good place to start.

A Will is not just the last instruction for what will happen to you and your worldly goods after death. It also represents a life’s work and tells the world something about who you were and what was important to you after you’ve passed away. That you wanted to look after your family, support a cause, ensure a friend was remembered by a special token or have your ashes spread over a cherished view.

But if you use a Homemade Will there is a real risk the most important document you ever sign may not do what you actually intended or, worse still, may be entirely invalid. It could turn out to be a well-hidden time bomb and what started out as a modest money-saving device eventually becomes a hard-fought legal battle which sadly you can no longer influence.

What are the risks and benefits of a Homemade Will?

If you inadvertently make an invalid Will and have no earlier existing Will, an intestacy arises and your Estate will be distributed in accordance with a set formula set down by law. In those circumstances, you may find your Estate passes entirely to persons you rather it did not or may not even know. Or there may be an earlier valid Will still in existence that is long out of date and does not reflect your final wishes.

Benefits of a Homemade Will

Let’s start with the benefits of a Homemade Will, which are fairly obvious. Firstly there’s the cost. Many retailers will sell you a Will writing kit for about £10 which will include “expert guidance” so you don’t need to incur the expense of instructing a solicitor. Also, you can do it from the comfort and privacy of your own home rather than taking a trip into town and then explaining your family background to a solicitor you may or may not know.

Once you have filled out the forms you then proceed smoothly to asking two people to witness it and hey presto, all done. You have saved money on the legal costs of creating a Will. Now you can get on with more important things like how to spend the money you have just saved.

Risks of a Homemade Will

So, what are the downsides and risks of having a Homemade Will? It is rather more complex to explain the many ways a HomemadeWill can turn out to be a bad idea and why problems crop up again and again.

Perhaps one of the easiest ways to get things wrong is to trip up at the most simple stage, the signing of the Will. We often see the validity of Homemade Wills called into question because they did not comply with the rules concerning signature and witnessing. These long-established rules are not particularly complex but observing the formalities is still crucial. What might appear to a layperson to be no more than a minor technicality can have serious consequences if not correctly observed.

Case law

Back in 2015, in the case of Royal National Institute for Deaf People and Others v Turner, the Court determined the Homemade Will in a £1.8m Estate was not signed by the testator before the witnesses who in turn were instrumental in leading the Court to conclude it was invalid. But this only followed a doubtless very expensive five-day trial with expert handwriting evidence and much emphasis placed on the recollection of the witnesses to a Will in which they had no interest, signed by them many years beforehand. It is highly likely that the total costs of this litigation for both sides was well into the six-figure mark. A modest saving in not having a will professionally drafted now no longer looks so attractive. A solicitor will ensure the Will is properly executed.

Getting the execution of a Will wrong can also lead to bad choices. We were recently instructed concerning a Homemade Will which was suspicious from the outset, as it was drafted by its main beneficiary.

Following an investigation, the main beneficiary eventually admitted the Will was witnessed at her behest only after the testator had died (which of course rendered it invalid) and only after a few fibs had been told (which resulted in a prosecution, a criminal record, and a 12-month suspended sentence).

The Will must of course reflect what is actually intended. We live in a much more complex society where second and blended families are common. Drafting a Will to accurately take account of complex family dynamics is more tricky than it first seems.

Then there are the additional concerns regarding Inheritance Tax or who is to be the guardian of your children. The opportunities to get these important matters wrong are numerous and varied. These are important matters that a solicitor will address.

But in order to advise you properly, the solicitor must at a minimum broadly know your family background and the size and nature of your Estate. This will involve perhaps one, if not two, visits but it is well worth it and surprisingly cost-effective. If you have difficulty getting about, the solicitor can even come to you.

The solicitor will also be able to advise you about matters which you may not have given much thought about or even know about. For instance, claims against the Estate under the Inheritance (Provision for Family & Dependants) Act 1975 are increasingly common and throw up a raft of considerations that the solicitor can address with you. What’s more, in the highly unlikely event something does go wrong, your solicitor is insured.

Comment

It is almost inevitable professional advice will be required at some stage in your life and preparation of your Will should be no different, and arguably, given that you will not be alive when the validity of the Will is challenged, seeking professional advice in respect of your Will is the most important document to seek advice upon.

Even though it is no longer your problem once you’re gone, preparing for death is something that should mean seeking professional advice. And when it touches everything you’ve worked for, that advice can be the difference between what you intended and what you most certainly did not, so it is money worth spending.