where there's a Will there's a way
The majority of
Wills that are admitted to probate are prepared by solicitors.
However approximately one quarter have been
prepared by the deceased and are either handwritten
or typed on plain paper or using Will forms supplied by stationers.
An increasing number of Wills are
being prepared using the Internet.
The option of preparing a Will
without professional assistance may appear attractive as it avoids
expense and the necessity to discuss your personal
affairs with a solicitor. However, it
is often said that lawyers are pleased to see home-made Wills
because they so often contain errors or ambiguities that require
expense to rectify or resolve. Sometimes these errors and
ambiguities will result in the deceased's estate being administered
in a way that is totally different to that envisaged by the
deceased.
The problems most commonly seen in
home-made Wills fall broadly into two categories: those affecting
the formal validity of the Will and those affecting the
construction and effect of the Will. The following examples are
drawn from Wills shown to members of the Succession & Tax team
in the past twelve months.
Several Wills have lacked an
appropriate clause showing the Will was properly signed and
witnessed (known as an attestation clause). This is not fatal to
the validity of the Will but will require an affidavit to be sworn,
ideally by one of the witnesses to the Will, to the effect that the
Will was signed by the testator in accordance with the statutory
requirements. The signature of the testator is often contained
within the body of the attestation clause provided in the Will form
supplied by the stationer. Again, this requires an affidavit to be
sworn by the witnesses to the Will. Sometimes a Will is un-dated or
the date has been amended but without appropriate formalities to
confirm the amendment to the date. Although a Will does not require
a date to be valid, the probate registrar will require an affidavit
as to the date of execution.
In each of the above cases additional
expense was incurred by the executors in proving the Will. However,
a Will that is not signed by the Testator and witnessed in the
prescribed form will fail and the estate will then be administered
in accordance with the testator's previous valid Will or, if there
is no such Will, in accordance with the intestacy provisions.
Occasionally a home-made Will is produced in which one of the
witnesses, or the spouse or civil partner of one of the witnesses,
had taken a gift under the Will. The fact that such a person has
witnessed the Will will not render it invalid but will render the
gift to the witness, spouse or civil partner ineffective. Such
errors do occur with stationers' Will forms although the
instructions for execution of the Will invariably state that such a
person must not witness the Will.
A recent administration conducted by
the firm concerned a handwritten Will using a stationer's Will form
in which the handwriting was not only almost illegible but the
meaning of the text itself was unclear. This led to a disputed
administration, considerable expense and ill feeling between
beneficiaries and potential beneficiaries. This handwritten Will
was made by an elderly testator and the question of his mental
capacity was also an issue. He was eventually shown to have had
capacity but this was contested by a potential beneficiary of his
estate and this difficulty and expense would have been avoided if
the Will had been prepared by a solicitor who would have made a
formal assessment of capacity at that time.
In all of the above cases, consulting
a solicitor would have resulted in a simpler and less expensive
administration. The majority of home-made Wills are relatively
straightforward in concept. Not surprisingly, the more complex the
intentions of the testator the more chance there is that these will
fail unless proper advice has been taken. The person who prepares a
home-made Will is not only risking an error in formal validity and
ambiguous content, but is also denying himself the opportunity to
be given advice about his own particular requirements.
In conclusion, if you have taken the
trouble to decide on your requirements to make a Will and not to
die intestate, then it is only prudent to ensure that those
requirements are the basis of good advice and are then properly and
clearly expressed and correctly executed.
For further details or advice on any
of the above, please contact Jonathan Randall, in
our Succession and Tax team, at jonathan.randall@bllaw.co.uk
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