Making a Will is something that finds its way to our “I’ll do it next week” list. Of course, the task falls further down the to-do list and never actually gets done. Making a Will is of great importance to ensure your Estate ends up with the right people. Many people consider that drafting a homemade Will is enough to ensure the future of their Estate. Unfortunately, this is not always the case.
Homemade Wills may seem like good choice because of their nominal cost and relative ease of fitting the task into a busy lifestyle. They can, however, give rise to a number of problems which can cause considerable difficulty for the testator’s surviving family. It may even result in the significant depletion of the Estate’s assets in sorting out potential disputes.
What are the Dangers?
Making a Will yourself comes with an array of risks. If mistakes are made, or if the strict witnessing rules are not followed correctly, the Will could be deemed invalid. If your witnesses are beneficiaries (or their near relations) then any gift to them may fail. The Will may fail to dispose of all of your assets, giving rise to a partial intestacy. If any of these things happen, it could affect the way in which your assets are distributed. In simple terms, this could mean that someone who you wished to benefit from your Estate may not do so and vice versa.
If the Will does not appoint an Executor (or appoints one who lacks mental capacity) then it may require an application to the Court of Protection for an order for someone else to be appointed to deal with the administration of the Estate. This can be costly and time-consuming.
If the Will does not name substitute beneficiaries and the named beneficiary has died first then a full or partial intestacy will arise.
If the fundamental validity of your Will is challenged after your death, the Court will make an initial presumption that the Will was validly executed but will listen to evidence presented to the Court to decide if this presumption should be overruled. Legal academics consider that the strength of the presumption that a Will is validly executed unless proven otherwise is weaker if the Will is homemade and a solicitor has not been involved in the process.
If a Court determines that a homemade Will is not valid, it is presumed that the deceased died intestate.
Results of Intestacy
If someone dies and there is no valid Will in place, their Estate is then distributed in accordance with the ‘Intestacy Rules.’ In summary, couples who are married, or in a civil partnership, and have no children, will inherit the full Estate if their partner dies without leaving a Will. Where children are involved, the surviving spouse or civil partner will inherit all of the personal property of the person who has died, the first £250,000 of the Estate and 50% of the remainder of the Estate. The remaining assets are then held for the deceased’s children.
Crucially, cohabitees do not have any rights of Inheritance under the Intestacy Rules.
Your Will governs the destiny of your entire Estate. Making a homemade Will can put your assets and possessions in jeopardy. If you would like to prepare a Will, please contact us and a member of our team would be happy to assist you.