With Smith v Ganning offering a reminder of the importance of executing a will properly, the perils of “DIY” wills are firmly in the spotlight.
Today’s Wills and Probate therefore set out to hear practitioners’ views on their worst experiences with DIY wills – here’s what they had to say.
Hannah Williams, Solicitor, Head of Private Client, M & M Solicitors
I have dealt with a DIY will where the witnesses signed but did not print their names or addresses. Therefore there would have been no way to know who they were or contact them had we needed a witness statement.
I also thankfully had the opportunity to draft a will for an elderly gentleman who showed me his existing handwritten DIY will for review. His writing was very difficult to understand so potentially would have caused problems in interpreting his wishes had we not executed a typed will at a later date.
Victoria Jones, Partner, Contested Wills, Trusts and Estates, Hugh James
I have dealt with a number of cases where DIY wills have caused problems for beneficiaries and executors, where the will has either been ineffective, prompted a disputed, or has later been declared invalid.
For example, one will had been drafted by a testator using another person’s will as a DIY template. This meant that several clauses reflected the other person’s personal circumstances and not the testator’s. It resulted in an ineffective will, which failed to carry out the testator’s wishes.
In another example, a DIY will template was purchased by the testator which automatically appointed the template provider as executor. After the testator’s death, this prompted a dispute over substantial estate administration fees and it also incurred costs to the estate and beneficiaries.
Elle McDonald, Solicitor, Stone King LLP
I once saw a will when I was a trainee solicitor whereby a precedent will had been downloaded from google for free. The names of beneficiaries had supposedly been handwritten in by the testator. The will was being challenged on the basis that the testator lacked capacity as one of the relatives had printed off this will from google and asked the testator to sign it on his death bed.
Joseph Austin, senior associate in the Private Client team at Kingsley Napley
I recently came across a homemade will where half of the residue was gifted to the deceased’s brother, who unexpectedly predeceased her. It was unclear if this share of residue could be interpreted as accruing to the surviving other 50% residuary beneficiary, or if the failed 50% share instead passed under the rules of intestacy to other family members. After complicated negotiations and having to incur the expense of counsel’s opinion and modelling the financial difference for the two scenarios, the 50% beneficiary – after having been offered independent legal advice – agreed to the intestacy rules applying to the failed half share (this beneficiary also took a portion under those intestacy rules to mitigate the difference).
All of the above created uncertainty, extra cost and delay and ultimately potentially meant that wider intestacy beneficiaries who the deceased might never have intended to benefit, taking a share of her estate. If the surviving 50% beneficiary had not been so reasonable, a full-on probate family dispute would probably have erupted necessitating the involvement of separate lawyers for each party (probably including a neutral professional personal representative) inevitably leaving less overall for the ultimate beneficiaries.
An accruer or gift in substitution which any decent professional will drafter would have taken instructions upon and included would have avoided all this.
I have seen another case where the homemade will was misplaced. Copies existed, but because the deceased handled this himself, then lost mental capacity, it has been necessary to go through the rigmarole of proving a copy and obtaining and submitting enough evidence for the Court to agree that the presumption that the absence of the original means that the testator had intended to revoke it, has been overcome. With the current state of the courts, the timeframe to Grant is extremely unpredictable, save for the fact it will definitely not be quick.
Rachel Tavroges-Hunter, Senior Associate at Stevens & Bolton
When dealing with the probate on a testator’s eventual death, we saw a will that had been stapled together with the Letter of Wishes which, unlike a will, importantly does not ultimately become a public-facing document. We then had to inform the client that the Probate Registry was likely to raise questions about the execution of the will and that an affidavit of due execution may well have to be prepared.
DIY wills can lack thorough consideration. For example, one homemade will I dealt with split the residuary estate into several different shares with no mention of who should bear the tax, which caused quite a headache when dealing with the probate.
Without sufficient professional advice, homemade wills sometimes don’t successfully incorporate the STEP standard provisions, which can leave a bit a lacuna in terms of executors’ administrative powers.
Sarah Mansbridge, Senior Associate at Ashfords
In recent years I have dealt with a number of homemade wills. At best, this usually results in delays with obtaining a Grant as the Probate Registry often raise queries on the execution and/or wording of the attestation clause.
The worst I dealt with resulted in Counsel’s opinion having to be sought on the validity of the will as well as protracted correspondence with the numerous beneficiaries of the estate. This ended up adding in excess of £30,000 to the administration costs of the estate. In my experience, homemade wills are often prepared to avoid incurring professional fees, but sadly end up costing the deceased’s estate more than the perceived saving they have made.
Geoffrey Todd, Private Client & Tax Partner at Boodle Hadfield
The mistakes people make when undertaking “DIY” wills are unfortunately many and varied. One of the most common errors is the failure to have the will witnessed correctly, which therefore makes it invalid. People are often unaware of the requirement to have two adult witnesses present (neither of which can be either a beneficiary or married to a beneficiary). Failure to appoint executors to administer the estate is another requirement easily overlooked.
Another recurring issue is the failure to consider international aspects when drawing up a DIY will. If the testator is from abroad, thought must be given as to whether English law applies to their succession, or where assets sit in other jurisdictions, whether they remain subject to English law or not.
Disputes can frequently arise if the will was made when the individual was either elderly or ill and could have lacked mental capacity, which provides an open door to disappointed potential beneficiaries to make a challenge to the will. Equally, a lack of specificity when it comes to specific assets, heirlooms, or family mementoes (by way of example) can lead to argument later down the line. It is important for all wills to have a “residue” clause to ensure nothing is left out.