Is A Homemade Will Valid?
A handwritten note found underneath the sofa of the late soul singer Aretha Franklin can be used as her legal last Will and Testament, a jury has ruled in the United States. With this latest news, Wills and Probate Solicitor, Megan Lovell discusses whether a homemade Will is valid…
Aretha Franklin was first believed to have died without leaving a Will. However a homemade Will was found underneath the sofa, and a jury in the United States found that the homemade Will was valid, despite the Will not being formally drawn up and not being witnessed. Under the laws of England and Wales, however, a Will is only valid if it is made in accordance with section 9 of the Wills Act 1837.
Section 9 Wills Act 1837 provides that for a Will to be valid it must be:
- In writing
- Signed by the Testator (the person making the Will) or by some other person in his presence or by his direction
- By signing their Will the testator intended to give effect to his Will
- Signed 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
So, provided that the above has been complied with, the Will may be held as valid.
However, even though the Will may be held valid, other problems may arise.
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 That Cannot Be Gifted
For example, you might wish to gift your house to someone, but 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.
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.
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.
Why Use A Professional Will Writing Service?
Our Wills and Probate team have over 70 years combined experience preparing Wills based on each individual client’s circumstances, including their family, finances and their wishes. A client’s priorities may encompass many factors such as inheritance tax planning, mitigation of care home fees, protecting assets from a previous relationships, and other considerations.
If you have any queries about a homemade Will, please contact our Wills and Probate Team on 0800 011 6666 or via email at legal@timms-law.com.
July 2023