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The Pitfalls of Homemade Wills

Why should I pay a solicitor to make my Will, when I can make...

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The Pitfalls of Homemade Wills

9th February 2021

News : Wills & Probate

Why should I pay a solicitor to make my Will, when I can make one at home?

The short answer to this frequently asked question is that, as experts in Wills and Probate, it is very unusual to see a homemade Will that doesn’t have a problem.

The longer answer is to give a long list of all of the different problems we’ve seen in homemade Wills over the years, and then state the cost to the families of these mistakes. But it would be impossible to list all of those in a single article!

Here are the most common mistakes we see in homemade Wills, and the problems that can arise.

Flawed Execution

Though not quite as dramatic as it sounds, the execution of a Will is essential to its validity. This means it must be signed correctly – with the right information included in order to be legally binding.

A lot of homemade Wills that are presented to us are either not signed at all, only signed by the person who made it, or without enough witnesses. Needless to say all of these problems would render a Will ‘invalid’ and leave a question mark over the administration of the estate

We’ve also come across situations where, whilst on the surface the Will looks valid, but upon digging a little deeper (which the Probate Registry will often do with a homemade Will), you learn that the witnesses actually signed it days after each other – again making it invalid.

Missing clauses

Another common mistake made by non-professionals making a Will, is to not account for certain assets or circumstances.

The most common of these is the residue clause – people will often gift specific assets, including property, items from the house, bank accounts etc, but not include a ‘residue’ clause. This is what covers any assets not specifically mentioned by other clauses in the Will.

If this is the case then, whilst the Will itself may still be valid, it creates a ‘partial intestacy’ – meaning a portion of the person’s assets are not covered by their Will. These remaining assets would be distributed in accordance with the Intestacy Rules. This may mean members of the deceased’s family (who they may not have wanted to inherit) may now be entitled to a share of their estate.

Another common missing clause is the executor appointment. Which, whilst again not automatically invalidating the Will, can cause problems with dealing with the estate.

Forgetting beneficiaries

One of the easiest mistakes to make is to name a child (or grandchild) in a Will, and forget about the possibility (however remote) that you may in the future have more children (or more grandchildren).

It’s also possible to forget about beneficiaries that you deliberately do not want to include. A partial intestacy can sometimes lead to family members you have forgotten about being entitled to benefit. Alternatively, you may consider your step-child as your own. However, if you have not legally adopted them, they will not be included under in any reference to ‘my children’ and may be accidentally excluded because of this.

In addition, forgetting to include appropriate substitute beneficiaries is an easy way to create a ‘gap’ in your estate if one of them dies before you, if there are no alternate provisions in place.

Lacking advice

This is the biggest issue with homemade Wills. You don’t know what you don’t know. It wouldn’t require years of study and training to become a Wills and Probate solicitor if all the relevant information pertinent to you was available on a quick google search.

Because everyone’s circumstances are unique – there isn’t a ‘one size fits all’ when it comes to Wills.

Some examples of problems that could be avoided if the person making the Will had taken professional advice rather than ‘had a go’ themselves include:

  • Appointing a guardian for a disabled beneficiary. It is not possible to appoint a guardian for an adult – so if you want to ensure that a vulnerable beneficiary has someone looking out for them when you’re no longer there, it’s prudent to take advice from not only a solicitor, but also someone in the care sector or social services.
  • Inheritance tax bills. The rules around Inheritance tax are complex – and often we will refer clients to accountants and tax specialists for bespoke advice. Making certain provisions in your Will can have a huge impact on whether the tax bill is a lot of money, or (in some cases) no money at all.
  • Claims from disgruntled family members. There are 2 ways someone might make a claim against your estate.

The first is the validity of the Will – if the Will is done with a professional solicitor, this is much less likely to attract the attention of someone wanting to dispute whether it was signed correctly.

The second is when spouses or children are disinherited and think they should be entitled to more. Whilst it’s difficult to prevent such claims entirely, certain steps can be taken to reduce the risk or their impact. What these steps are depend on the person – and so it’s best to take proper advice if you want peace of mind that you’ve done all you can to protect your loved ones.

What to do next?

If you are thinking of making a Will, and want to ensure that it is valid, and meets your needs appropriately, contact us today on 01270 613939 or by completing a contact form here, to arrange to speak to one of our expert Wills and Probate solicitors.

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