DIY? Good for the garden shed but not for your Will
Posted on 15th September 2022 at 10:34
It may seem like a good idea to draft your own Will to avoid incurring solicitors’ fees. However, it is important to understand that this may not be cost-effective in the long run, despite how appealing it may be. After all, you wouldn’t cut your own hair, so why draft your own Will?
What can go wrong?
The legal requirements for making a valid Will are very strict and archaic. Wills may not always have their desired effect if they are not drafted properly.
There are many common problems that occur when Wills are incorrectly drafted, and these include:
• Incorrect signatures – this can result in the Will being invalid or cause extra hurdles to overcome once you pass to try and prove that the Will was validly executed.
• Failure to sever ownership of jointly held property – resulting in property passing through survivorship as opposed to passing through the provisions of the Will.
• Definitions – if you do not accurately define people or objects in your Will, your estate may not be distributed in line with your intentions. For example, if you state “my children”, this will not automatically include stepchildren. Ambiguous clauses may fail in their entirety.
• Taxable estates – Wills for estates of a high value may not be drafted in the most tax efficient way if drafted yourself, this may result in your loved ones’ inheritance being subject to inheritance tax without professional advice.
• Capacity and undue influence not being assessed – there are strict procedures to be followed when assessing mental capacity to mitigate any future litigation. These procedures and likely to not be followed correctly if someone is making a Will at home. A lack of professional or medical involvement may open the door for claims to be made in relation to the testator having the correct mental capacity. Homemade Wills are also likely to be made with some assistance which may give rise to allegations of undue influence, meaning that the testator may have been coerced into drafting their Will in a particular way.
• Proof of knowledge and approval – it is vital that the testator has knowledge and approves of the contents of their Will before it is signed, in circumstances where the language in the Will differs from that of the testator, where there are uncharacteristic features and where the Will contains significant differences to previous Wills, the courts may investigate whether the testator had knowledge and approval of the content.
Will you actually save money?
Although paying a professional may seem more expensive, the reality is that a DIY Will may create costly complications for your loved ones to overcome when they try to put your wishes into effect.
It is likely that the costs to your estate will be significantly higher if you draft your own Will.
Why do I need legal advice?
If you choose not to use a specialist, you will not receive any advice in relation to the best options regarding your circumstances or any problems with what you are planning on implementing. Knowing that you have properly accounted for everyone and every possible situation in your Will can give you the peace of mind that your wishes will be successful on your death.
Solicitors can provide advice in relation to estate planning during your lifetime, including how your estate will be impacted by inheritance tax, and care home fee planning.
Risk of claims against the estate are full explored and explained by solicitors so the testator can make an informed decision on how best to mitigate these claims. If someone does try to claim, or an investigation takes place, the solicitor will have prepared detailed attendance notes following every meeting, which can support the testator’s intention following their death.
Solicitors also assess an individual’s mental capacity and confirm that the individual had knowledge and approved of the content of the Will before it was signed. This mitigates the risk of claims regarding capacity, and all clients are seen independently to ensure that they are not acting under any undue influence.
You should consider reviewing your Will after any significant change in your circumstances, but it may be appropriate to obtain expert advice from private client specialists in certain situations:
• If you are getting divorced
• If you have assets overseas
• If you have a high value estate
• If you are co-habiting but are not married
• If you wish to exclude anyone from your Will
• If you wish to protect children from previous marriages
Solicitors are regulated by the Law Society and insured to ensure that if any issues arise, the cost should not fall to your estate to pay.
How can we help?
Here at Avery Walters, our Private Client specialists offer free initial, no obligation meetings to discuss your wishes and advise you upon the best options to protect your assets and loved ones when you pass.
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