Should you write or amend your own Will or Codicil?
The Covid pandemic has seen an increase in the number of people instructing us to review their Estate Planning arrangements. However, with lockdowns providing people with time to reflect on their personal circumstances, we've seen an increase in those looking to arrange their affairs, perhaps for convenience or cost, through DIY Wills or Codicils, including those with substantial and complex estates.
With Christmas fast approaching and the possibility of having even more time at home, we believe that we shall see even more DIY Wills and Codicils.
Whilst this may seem attractive in terms of convenience and cost, there are huge risks involved, and if an error is made it could result in severe consequences for loved ones, as well as significant legal costs in resolving any dispute.
Over the past few years we have seen an increase in claims against Estates, which also includes issues in respect of DIY Wills. Some common issues include:
Silence or Invalidity
DIY Wills may contain inadequate or inappropriate clauses which either fail to deal with all the assets within the estate or contain contradictory wishes.
In the absence of a clause within a Will, or in the worst case scenario where the entire Will is deemed invalid, the rules of Intestacy will be applied which include a strict order of priority as to who will administer the estate as well as to who will inherit the estate. This could lead to unexpected results and also unwelcome tax consequences.
DIY Codicils can include provisions which, inadvertently, contradict other parts of the existing Will or invalidate an important tax planning clause.
One size does not fit all
The modern family unit is no longer made up of the typical nuclear structure and can often include step and half children and it needs to use the correct terminology to protect the people who are intended to inherit the estate.
Unclear wording can lead to ambiguity, then to litigation and potentially a judge having to decide what the Will ought to have said and/or what was intended.
There can often be allegations of undue influence and pressure – especially if a beneficiary or someone related to the testator has assisted him/her with the Will. Involving a solicitor, who is independent and has no vested interest in the estate, will limit risk. A solicitor will also assess the capacity of the Will-maker (or instruct a medical professional to do so) and should a dispute arise, attendance notes and evidence gathered will be able to combat any accusations of coercion or capacity doubts.
Witness to the signing
As you may recall from our last article, in order to be valid, a Will must be properly executed by being signed in the presence of two witnesses. If, for example, one of the witnesses is also a beneficiary under the Will, then any gift to that person will fail. A solicitor can ensure that witnesses are suitable and that the Will is properly executed.
Get in touch
With the above in mind, although there may be reasons why someone will attempt a DIY Will or codicil, the risks of the Will then becoming disputed are greatly increased.
If you require any legal advice or wish to have an initial discussion on Estate Planning issues or have concern as to a Will which has already been prepared, then please contact either Karen Young or Daniel Wilson.
Alternatively, click here to find out more about our services for individuals.
All information in this update is accurate at the time of writing. It is meant for general information only and is not legal advice.