Beware! The pitfalls of drafting your own Will
Posted on 2nd June 2023 at 15:42
Many people will be aware that it is possible to write your own Will, or to purchase a kit that will assist you in writing your own Will. Whilst you may think that these products will save you time and money, they could be very costly to your loved ones in the event that the formalities for making a Will valid have not been correctly adhered to.
Is my handwritten Will valid?
The first requirement for a Will to be valid, is that the Testator (the person whose Will it is), must have mental capacity. This means that the testator knows that he or she is making a Will, and that it will take effect upon his or her death. The testator must also understand the nature and the extent of their assets as well as the value of those assets. A testator must understand their family make up and appreciate who they have a moral obligation to provide for. At the time of the preparation of the Will, the testator must have capacity and not be suffering any “insane delusion of the mind.”
Capacity should not be considered separately to the issue as to whether the testator has knowledge and approval of the existence of the Will, and the contents of the same.
The Will must also be in writing and signed by the testator and two independent witnesses.
The Will should be dated, in order that the most recent Will can be identified upon your death.
Who can be an executor? Can they also benefit from my Will?
Whilst it is possible to have one sole executor, if they pass away before you, this will be problematic if your Will is not updated to appoint a new executor after the death of your chosen executor.
It is always advisable to have two or more executors, ideally of different ages/generations to minimise the risk of your executors pre-deceasing you.
Many people believe that an executor cannot also be a beneficiary under the Will, but this is not correct.
What assets should I include in my Will?
It is important that you include all your assets in your Will. Properties, money, vehicles, collections of valuable or sentimental items, jewellery etc.
If you have assets abroad, you will need to ensure that these are dealt with by way of a Will in the relevant country.
Any items that you have in your possession at your death that are not expressly mentioned in your Will, form part of the residue of your estate. This is why it is imperative to identify all your assets to ensure that the Will provides for them to go to the person of your choice, rather than falling into the residue.
Can a Will be challenged?
In short, yes! It is important to note that any Will can be challenged.
However, a self-prepared Will is more likely to be challenged by anyone who feels dis-satisfied with the contents of the Will. Where a Will has been prepared by the testator themselves, it is unlikely that there will be any record of who was present at the time the Will was written. It also leaves scope for the testator’s capacity and understanding of their actions in preparing their Will to be questioned – especially in the case of an older person, or someone who had a diagnosis of dementia or similar.
Whilst a medical diagnosis does not automatically mean that a person lacks capacity, further steps may need to be taken to ensure that the testator does understand the content of the Will, and its implications, and therefore reduce the chance of any challenge on the grounds of a lack of capacity being successful.
Why use a solicitor to prepare your Will?
Using a solicitor to prepare your Will is not as scary as you may think! Solicitors preparing Wills are usually happy to do so on a fixed-fee basis and therefore this gives you certainty as to costs.
One of the purposes of a Will is to give you peace of mind that your assets will go to the people that you would like them to upon your passing, and therefore it is important that your Will is drafted correctly to avoid any ambiguities or inconsistencies which could cause problems and distress to your loved ones at an already difficult time. A legal professional will be able to ensure that the correct terminology is used, and that your wishes are clear and concise.
With a professionally prepared Will, you will meet with a legal professional who will be able to discuss who you wish to benefit from your estate. If your estate is likely to be subject to inheritance tax once you pass away, a solicitor will also be able to provide you with tax advice in order that you can start putting provisions in place during your lifetime to maximise any relief/exemptions available to you, with a view to minimising the inheritance tax bill for your loved ones upon your passing.
We would always advise anyone to seek legal advice regarding making a Will, especially if you have a significant estate, or your wishes are complex.
Our friendly and professional private client team are here to help. Please contact us on 0113 200 7480 for your free, no obligation consultation.
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