Is There A Problem With A Homemade Will?
In her latest Timms Blog, Wills and Probate Solicitor Anna Bradley discusses “Is there a problem with ahomemade Will?”….
Flawed Execution of the Will
There are numerous Court cases where Wills have been overruled because all the legal formalities needed to make a valid Will have not been complied with.
The Wills Act dates back to 1837 and sets out certain procedures to be followed to ensure the Will is valid. If you fail to follow any of the rules then the Will can be declared invalid. Therefore, meaning your wishes may not be carried out.
S9 Wills Act 1837 provides that to be valid:
- A Will must be in writing.
- A Will must be signed by the Testator (the person making the Will). Or by some other person in his presence or by his direction.
- By signing his Will the Testator intended to give effect to his Will.
- In the presence of two, independent witnesses (that they are not named/included as beneficiaries in the Will), who should also sign the Will in the presence of the Testator.
Due to the Covid Pandemic there has been an amendment to the above rules. That in relation to Wills made on or after 31st January 2020 and on or before 31 January 2022, ‘presence’ includes by means of video conference or other visual transmission.
Wills Failing To Cover All Assets
Often homemade Wills gift specific assets to people. However, they do not cover the common situation where an asset changes, either by being sold, or new assets being accumulated. This could result in a situation where a person dies, and not all their assets/estate is included in their Will.
Wills & Gifting Assets Which Cannot Legally Be Gifted
For example, you might wish to gift your house to someone. However, based on the way you own it you may not be able to, such as if are holding as joint tenants with another co-owner – and this co-owner is not the person you wish to leave your share in the property to. You therefore need to change your ownership to tenants in common.
Forgetting Beneficiaries
When a person makes a Will, they may not consider all potential beneficiaries, or realise they have not included/excluded a beneficiary. For example, if you refer to a ‘Child’ in your Will, this will include blood related and legally adopted children. However, it won’t refer to ‘step’ children or children you have fostered, unless they are specifically named in your Will.
There are legal rules in relation to children born via surrogacy or IVF and my colleague Charlotte Day has written a Blog discussing this point.
Lacking Advice – Inheritance Tax
Without the experience and knowledge of being a legal professional, when making a Will, a person may not realise the Inheritance Tax rules, reliefs and exemptions available. A previous Blog of mine considers Inheritance tax planning when making a Will.
The Wording Of The Will – Ambiguity And Misunderstandings
The cost to rectify an error in a Will can be substantial, compared to making a ‘free’ homemade Will.
I have been preparing Wills for clients for over 11 years and each client’s circumstances, including their family, finances and their wishes, are unique. A client’s priorities may encompass many factors. Including inheritance tax planning, mitigation of care home fees, protecting assets from a previous relationship, and other considerations.
How Can Timms Help?
If you have any questions and would like a professionally drafted Will, please contact me at a.bradley@timms-law.com or telephone 01283 214 331. Alternatively visit the Wills and Probate section of our website here.
May 2022