In this opinion piece, Zoe Pearse TEP, Associate at Seddons explores issues surrounding DIY wills and the impact of inaccurate wills on the probate process.
In 2023, more than 5.7 million people purchased online wills, but only 170,000 checked the qualifications of the will writer. Incorrectly written or unclear wills can slow down the already strained probate system. Over recent years, the system has dramatically slowed down following the transition to an online probate portal service, which was designed to streamline the process.
As well as having the mental capacity to make a will, the formalities required for a valid Will are set out in Section 9 of the Wills Act 1837 as follows:
- The will must be in writing;
- Be signed by the testator (the person making the will) or signed on behalf of the testator in their presence and by their direction, and
- The testator’s signature (or acknowledgement) must be made in the presence of two witnesses, present at the same time.
This sounds relatively straightforward. However, in practice, problems are frequently encountered with wills that are signed or witnessed incorrectly by people who have ‘home-made’ wills or wills written by unregulated will providers. As such, when applying for a Grant of Probate, such wills can be rejected by the Probate Registry for not correctly following the formalities as set out in legislation.
This can lead to delays in obtaining a Grant of Probate as often the Probate Registry will require an Affidavit of Execution, which is an important legal document signed by one (or more) witnesses to verify that they witnessed a testator signing their will. This can take time, as witnesses may need to be tracked down, or worse still, with wills prepared many years ago the witness may no longer be alive which can further complicate matters.
Ultimately, if such issues cannot be rectified then, a will may be deemed invalid and, if so, the estate will be distributed in accordance with the intestacy rules. The intestacy rules are governed by the law. Only married (or civil partners), children and other close relatives can inherit under the rules of intestacy. This may not be in accordance with the testator’s wishes. Further to this, the intestacy rules do not recognise unmarried cohabiting partners as being entitled. Therefore, if a person, who has been with their partner for several decades, dies with an invalid will, then unfortunately their surviving partner is entitled to nothing.
When obtaining a professionally drafted will by a legal professional, they will ensure that the legal formalities are dealt with correctly. The legal professional will meet with clients when signing their wills to oversee this process. Legal professionals will also include an ‘attestation clause’ in a professionally-drafted will. This confirms that the testator has signed the will in the presence of two witnesses. This is an important clause to demonstrate that the legal formalities have been complied with and to avoid any such issues that come with having an invalid will. If unable to meet with clients to oversee the process, legal professionals will send wills to clients with clear instructions on how it should be signed and witnessed to ensure the legal formalities are correctly dealt with and then carefully check this when the will is received back from the client to ensure there are no issues.
Further to this, individuals who prepare a ‘home-made’ will or a will written by unregulated will providers are depriving themselves of quality legal advice. In some circumstances, it may be more appropriate for testators to use a trust vehicle in their wills particularly if there are children from a previous marriage or if there is a legitimate concern that assets need to be protected for the next generation. Inheritance tax is also a key factor and legal professionals are qualified to offer advice on this and ensure the will is structured in an inheritance tax efficient manner tailored to an individuals’ specific circumstances.
The process of applying for a Grant of Probate is often a difficult and emotional time for families who are coming to terms with the loss of a loved one. The additional stress that can come with a poorly drafted or invalid will can create unnecessary and costly complications. This can be avoided by obtaining a correctly drafted and valid will by a legal professional.
