Do I need a solicitor to make a valid Will?

Background

Single mother Joanna had instructed professionals to draft her a Will in 2008 to leave all of her estate to her two children. However, by the time she sadly died of a terminal illness in 2021, her brother Simon had assisted her with the creation of a new Will, which she executed in 2019. This Will had been created using an internet template and directed that Joanna’s entire estate should pass to Simon, save for her book collection which had been left to Simon’s wife. Joanna’s 2019 Will appointed Simon as her executor and left nothing to her two children, the Claimants, which was in stark contrast to her previous Will in 2008.

Simon’s case was that Joanna asked him to prepare a Will for her and relayed clear instructions as to the Will’s terms to him over the phone. He stated that once he had prepared the Will, he had read it back to her, sent her an electronic copy and then he delivered to her a bound version for signature. Joanna then signed and retained the Will, while Simon burned the 2008 Will as per Joanna’s instructions.

The Claimants, finding the circumstances of the execution of the 2019 Will to be suspicious, challenged their mother’s knowledge and approval of the document’s terms. They contended that their mother had always intended to leave her estate to them, and in particular, she was adamant that she wanted to correct any imbalance in their lifetime gifts in the division of her estate. This intention was reflected in a number of recorded conversations between the Claimants and their mother, the last one being just three weeks before the 2019 Will was executed, which they presented to the Court.

The Court’s decision

Based upon the evidence, the Judge concluded that Joanna had wanted Simon to receive her estate, so that he could divide it fairly between her two children, taking into account any lifetime gifts. He found it was Joanna’s intention that both of her children would end up as equals overall and gave Simon oral instructions to this effect.

However, by drafting a Will that named Simon as executor and him and his wife as beneficiaries, Simon had failed to act in accordance with Joanna’s intentions. While she thought Simon would inherit her estate to distribute it as per her wishes, no such wishes had been formally incorporated into the Will, meaning that Simon was under no obligation to follow them. Effectively he received the entirety of her estate as an outright gift, which is not what Joanna wanted.

The Judge therefore found the 2019 Will to be invalid on the basis that Joanna had not understood the effect of its terms and he noted that, had a lawyer been involved in the Will’s preparation, they would have recognised that Joanna’s instructions called for the creation of a discretionary trust in favour of her children, with Simon acting as a trustee. Without legal assistance however, Joanna had inadvertently created a Will disinheriting her children, which was contrary to the arrangements she was seeking to put in place.

Are homemade Wills valid?

Homemade Wills will often be created from templates, whether in electronic or hard copy, which require you to fill in the blanks on a standard document. These can be legally valid if properly drafted, signed and witnessed, but the absence of any one of these elements, your Will could be in danger of being invalid and potentially disputed.

When preparing a Will without the guidance of a professional, you carry the risk that one or more of the following mistakes could occur:

• The Will is not signed or witnessed correctly. Failing to meet the correct formalities in respect of signing or witnessing a Will can invalidate the entire document.
• A beneficiary has witnessed your Will. In this instance, the beneficiary will wholly surrender their entitlement to any gifts left to them in the Will.
• There is no provision for beneficiaries pre-deceasing the testator. This could lead to a whole or partial intestacy if the gifts under the Will fail and there is no contingent beneficiary to receive the assets.
• The Will is not clear enough in relation to specific gifts. There can be confusion if the Will seeks to distribute multiple similar items, or there is ambiguity as to how the assets should be shared between beneficiaries.
• The testator seeks to amend the Will after its execution. Amendments to a Will are often queried by the Probate Registry and could be a potential source of contention among beneficiaries, depending on the effect of the changes.

It is easy to see therefore how an error in a Will’s preparation can create a range of problems, whether that be an unwanted tax liability, a partial intestacy, or as was the case in Ingram & Whitfield v Abraham, the Will ultimately being invalid. These are common problems we see with homemade Wills.

If the terms of your Will are brought into question, this can cause significant delays with the Probate Registry and can leave your family in a difficult situation if any legal action arises because of the way your Will was prepared. While you might initially save money by taking the DIY approach, if there is any uncertainty as to how your estate should be distributed, your family members could incur significant costs rectifying the situation, thereby reducing the value of the estate you had intended to leave them. This case clearly highlights that taking a short cut may not be the best approach in the long term.

If you have already made a homemade Will, we recommend that you ask a professional to review the document to confirm it is valid and properly gives effect to your objectives. Alternatively, if you have any concerns regarding the validity of a deceased relative’s homemade Will, our dedicated Estate, Trust & Will Disputes can offer their advice.

Our Pprivate client team are specialist Will drafters with experience preparing Wills of varying complexities. Instructing our experts to review or prepare your testamentary documents will ensure that your affairs are suitably arranged, and your estate is properly distributed in line with your wishes. 

Find out more about how our experienced private client team can help you.