Don’t do it. You’ll thank me later…or more correctly your beneficiaries may thank me later.

Admittedly there’s always an exception like in all things in life and that is for you to decide. Hopefully, this piece will go a little way to determine whether your situation merits one of those exceptions.

The default position

If you don’t have a Will, the laws of intestacy decide how your estate will be distributed, and this currently means, if you’re married (or in a civil partnership), that your surviving spouse will receive all your personal chattels, the first £270,000 of your net estate, a further 50% of the balance with the remaining 50% being distributed among your biological or adopted children equally. As you can imagine, not quite appropriate for blended families with stepchildren and cohabiting families which is far more common today.

You can check the .gov site here https://www.gov.uk/inherits-someone-dies-without-will for other scenarios.

A Will

A Will alters the default intestacy provision to what your written Will says, which is supposed to be reflective of your intentions. I say ‘supposed to be’ because there are occasions when your Will doesn’t reflect your intentions. This is because of ambiguity. It’s more common than you may think. A Will is interpreted in accordance with its plain meaning andno amount of external evidence can resolve that ambiguity if it results in re-interpreting those very words confirming your intended instructions. The reason being is because it would open floodgates of fraudulent activity post-death. A DIY Will exacerbates this problem. A well-drafted Will can completely remove this problem where the consultant understands your family dynamics coupled with your instructions.

Consider a situation where you intend to gift your current main residence to your favourite child, a daughter. You have 3 other children, but you just don’t like them as much and intend only to give them a share of your cash savings which is a lot less than the value of your home.

However, prior to your death you sold your original home and bought a new home closer to your daughter who is actively taking care of you. You didn’t update your Will and you died.

I think it’s reasonable to assume that you would’ve intended your new home to pass to your favourite daughter but that’s not how the law sees it even if you had sat down all your children on your death bed to clarify the situation.

This is because that specific gift of property when you originally wrote your Will no longer exists and therefore it’s said to adeem and as per S.25 of the Wills Act 1837, your main residence at the date of death will fall into residue. This could mean, dependent upon how your Will was drafted, your daughter is left with nothing as she wasn’t given any entitlement to the residue of your estate.

Let the legal battles commence…

Or how about a situation where a testator intends to gift another person’s property (usually a child’s) because that other person is only the owner ‘on paper’? Or how about, gifting very expensive jewelry without clearly identifying it? Or how about gifting property which is owned on a joint tenants basis which in fact can’t be gifted via your Will? All these scenarios difficult to resolve with a DIY Will.

What makes a Will valid?

Section 9 of Wills Act 1837 (S.9 WA 1837) states the requirement for a valid Will. It says:

–         It must be in writing

–         It must be signed by the testator or signed by another at the testator’s direction and in his presence.

–         It must appear that the testator intended to give effect to it by his signature.

–         The testator’s signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time.

–         Each witness must sign or acknowledge his signature in the presence of the testator (but not necessarily in the presence of the other witness(es)).  

–         It does not need any form of attestation.

But Section 9 is only relevant where a testator has the mental capacity to make a Will in the first place, that they have knowledge of the Will and approve of its contents, that they are not being unduly influenced when executing their Will.

Let’s say a testator can’t speak English and relays their instruction to a trusted child who then innocently submits all the necessary information for a DIY Will that ignores some otherwise legitimate beneficiaries or if they’ve been bequeathed less than what they feel they deserve. Or if you have an elderly testator with umpteen health problems, or someone going through a difficult period in their life thereby lacking appropriate decision-making powers; all these scenarios and several more can lead to a Will being challenged.

Among the objectives of successfully challenging a Will is to invalidate it thereby defaulting to the laws of intestacy to determine the distribution. This could mean those who under a Will would’ve benefitted less now benefit more.

If you think that’s unlikely to happen to you, consider the fact that over 12.6 million (24 per cent) people would seek to dispute the wishes of a loved one by going to court to challenge the bequests if they disagreed with the division of their estate and in 2017  there were 8,159 caveats registered to block a grant of probate. (https://www.directlinegroup.co.uk/en/news/brand-news/2019/25022019.html). Consider in 2005, the High Court only dealt with 15 inheritance disputes and in 2015 it dealt with 116.

Even if a challenge to a Will is unsuccessful, the length of time it takes to resolve a challenge could make that cheap DIY Will expensive and if that challenge is successful considerably more so.

It is also important to avoid services where no real advice other than taking your instructions online and sending you a Will to sign, even if it is going to be proof-read by a solicitor, as for the most part they’re probably only checking for compliance with S.9 WA 1837.

Good advice looks like spending time to properly understand your family’s dynamics, having an appropriately skilled interpreter in the room where necessary, being able to pick up on possible cues of undue influence, having a private conversation with the parties involved, exploring potential tax planning solutions and possible asset protection solutions for any bloodline planning. Good advice can manage multiple important family relationships.  

Good advice also means good practice, that’s having meticulous records and meeting notes so that if your adviser is ever faced with a dreaded Larke Vs Nugus request and needs to open their files to demonstrate the integrity and veracity of their planning in order to ensure your Will represents your voice, they’d have no hesitation to do so.

As inheritance values increase and an expected inheritance becomes part of your beneficiaries financial plans be it to pay off the mortgage of part-fund their retirement as they live longer, it’s paramount you receive high-quality advice in order to ensure your testamentary instructions are robustly met and that your legacy to your beneficiaries is protected.

Mohammad Uz-Zaman is a private client trust and estate planning consultant who holds accreditations across regulated financial advice and estate planning. He holds graduate and post-graduate degrees and he is also an associate member of the Society of Trusts and Estate Practitioners (STEP). He works closely with financial advisers, general practice solicitors, accountants and investment managers from several major practices.

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