In an age where everything seems to come with a price tag, most of us in one way or another will try and find cost-effective ways in which to handle our affairs in an effort to save some money.
A popular money-saving exercise that seems to have caught the attention of the thrifty amongst us is the option of writing your own Will.
On the face of it, writing your own Will appears to make sense – if you go to a solicitor, a basic Will may cost you between £100-£150 and by contrast, writing your own will could cost you nothing.
There is no obligation to instruct a solicitor when making a Will, and it is so often presumed that it is easy to leave written instructions to say who is to get what after your death. Surely you can simply write your wishes on a piece of paper and sign it and it will be legally binding, right?
Wrong! It may easy to write out your wishes and directions, but it is dangerous to presume that this expression of wishes will be legally binding after your death.
Making a Will yourself comes with an array of risks – if mistakes are made, or if the strict witnessing rules are not followed correctly, your Will could be deemed invalid. If this happens, it could affect the way in which your assets are divided up – this could mean that someone who you wished to benefit from your Estate may not do so. There can be further serious implications – you risk leaving your family with a financial and emotional mess, and there is also the potential of your assets being eaten away by legal bills or unnecessary tax.
Two recent cases decided by the High Court and Court of Appeal in England highlighted the dangers and concerns around homemade Wills:-
Watts v Watts
Valerie Watts died of cancer in 2011 – she was survived by her two adult children who were not close and who had fallen out during their mother’s final illness. Valerie made a Will in 1999 which favoured both children. After her death, a Will dated 2011 (alleged to be have been written by Valerie whilst she was terminally ill in hospital) was produced and this second Will excluded her daughter. Upon Valerie’s death, the 2011 Will was challenged. The Court heard arguments as to whether Valerie’s signature on the 2011 Will had been forged and if not, whether the Will had been validly executed by two witnesses signing the Will in Valerie’s presence and in the presence of each other.
The Court decided that Valerie’s son had forged her signature, and that two witnesses had not been present as required. On both counts, the Will was deemed to be invalid.
This case involved an estate worth £1.8 million. Mrs Wheelan and her husband had made Wills through a solicitor in 1982. Mr Wheelan died, and Mrs Wheelan thereafter signed a document in 1999 without legal assistance, purporting to be a Will. Questions arose after Mrs Wheelan’s death as to whether the 1999 Will was properly executed in the presence of two witnesses. Ultimately, the Court found that it was not, and despite taking the view that Mrs Wheelan intended the contents of the 1999 Will to prevail, the Will could not be considered to be valid.
As a consequence of this formal flaw, a lot of money was spent on Court proceedings and Mrs Wheelan’s testamentary wishes could not be acted upon. If Mrs Wheelan had spent a very modest sum of money engaging a solicitor, her £1.8 million estate would have been given to those she intended to receive it. The fatal formal flaw in her Will however denied this inheritance to her intended beneficiaries.
The reality is that after your death, it is too late to fix any problems there are with your Will.
If the validity of your Will is challenged after your death, the Court will make an initial presumption that the Will was validly executed but it will listen to evidence to decide if this presumption should be over ruled. Academic opinion suggests that the strength of the presumption that a Will is validly executed unless proven otherwise is weaker where the Will is homemade and a lawyer has not been involved in the process.
Wills govern the destiny of all of your assets and possessions. It is a false economy to risk making a homemade Will. If your personal circumstances are straightforward, making a Will via a solicitor is a relatively inexpensive exercise and will provide you with reassurance that it is has been done the right way. If, on the other hand, your circumstances are complicated or your assets are substantial, it is imperative that you seek full legal advice to avoid any future legal challenges or hefty tax bills.