The perils of a DIY will
5th February 2024
‘Many people who opt to make a home-made Will do so because they think they will save money on legal fees. Unfortunately, this can lead to problems and unexpected costs later down the line for the family who may be left to unravel problems at a difficult time,’ says Susan Hall, Head of the Private Client department at Myers Solicitors. ‘DIY Wills are sometimes declared invalid, or result in problems that require court intervention, far more commonly than Wills that have been professionally drafted.’
What can go wrong with a DIY Will
The worst-case scenario with a home-made Will is that the entire document is declared invalid. If this is the case, then your estate will not pass in accordance with your wishes and assets could end up in the hands of someone who you do not wish to inherit.
Alternatively, a home-made Will might cause problems in relation to certain aspects of the contents, typically due to the Will writer not fully understanding the legal requirements for a Will. For example:
- Executors – Some home-made Wills fail to appoint an executor because the person who has made it incorrectly thought it was only necessary to state who they wish their estate to pass to. An executor appointment is a vital part of the will. Without naming an executor, the remainder of the will may be valid, but pre-existing laws will determine who deals with the estate administration. This could, therefore, be someone who you would not wish to be involved. The same issue can occur if you appoint an executor without thinking about a replacement who could step in if your first choice is unavailable.
- Trustees – If your Will requires trustees and you do not include the correct legal provision for this, it may result in an expensive and time-consuming court process for suitable trustees to be appointed after your death. The costs of such a process would be taken from the trust assets, leaving less for your beneficiaries.
- Children – In the case of young children, a Will should always appoint a suitable guardian. If the Will fails to do so and you die leaving children who are under the age of 18, someone will need to apply to the court to be legally responsible for them. Not only could this end up being someone who you do not necessarily trust to raise your children, it would involve lengthy court proceedings which may use up a large amount of your children’s inheritance.
- Gifts – Aside from people who should be named in the Will but are not, a DIY Will might result in issues with the gifts themselves. Beneficiaries of a Will should be carefully named or defined. The items to be gifted should also be clearly defined. If there is any doubt as to who the intended beneficiary is, or what the gift is, it can end up being a decision for the court to determine. Again, this is likely to prove costly and time-consuming, reducing the inheritance ultimately available and delaying the time by which this will be paid to your beneficiaries. The court could also rule that the legal beneficiary is not the person you intended.
- Beneficiaries – If a DIY Will does not contain a default provision, then if the first intended beneficiary has died the estate will pass by intestacy instead. Sometimes, a home-made Will may also seek to leave a gift to a beneficiary that is not a valid legal entity for the purpose of receiving gifts, which again could result in the intestacy rules applying instead. These may not be in accordance with your wishes.
- Taxes and costs – Certain gifts might require some consideration in terms of specific requirements, such as who should pay any associated costs involved (for example costs of sale or taxes), or the age at which the gift should be inherited. If the Will does not specify these aspects, then the law will determine them, and this may impose costs on beneficiaries unfairly or against your wishes. It could also result in higher taxes having to be paid, which a solicitor could have advised on and drafted the Will to mitigate.
The benefit of using a solicitor to draft your Will
Solicitors undergo rigorous training and receive regular updates on case law to ensure that they are fully aware of the correct legal terminology to use in a Will so as to give effect to your wishes. They are also familiar with common issues and how to avoid these, as well as relevant tax laws and the appropriate ways in which to structure a Will to make the most of any tax allowances.
A solicitor will discuss your family and financial circumstances with you to help you make an informed decision about the exact terms of your Will so that you can ensure you and your loved ones are protected.
When choosing a firm of solicitors, it is advisable to seek a firm with appropriate accreditations. Solicitors are regulated by the Solicitors Regulation Authority and may belong to other professional bodies such as STEP or SFE which demonstrate a greater level of knowledge or experience.
As well as the benefit of solicitors being regulated, individual solicitors and their firms are also required to obtain professional indemnity insurance, giving you a route to redress if anything were to go wrong.
How we can help
Preparing your own Will at home may seem like a good idea, but the cost-saving could backfire on your loved ones after your death. It is usually worth spending a small amount upfront to protect your assets and your family in the long term. Our solicitors can help you to ensure that your Will is fit for purpose and achieves your desires. For further information, please contact Sue Hall, Director and Head of Wills and Probate on 01782 577000 or email susan.hall@myerssolicitors.co.uk.
