The perils of ‘’do it yourself’’ and out-of-date Wills

In the bedroom drawers of houses up and down the land lie thousands of invalid or out-of-date wills.

Invalid, perhaps, because they’ve not properly been dated and signed in the presence of two witnesses - or which have been automatically revoked by a re-marriage.

Sometimes one of the witnesses is a beneficiary under the will – the will remains valid but the gift to that witness fails.

In practice, many homemade wills prove to have been improperly executed. Any will-making kit purchased from a stationers or available online will carry clear instructions as to the formalities for executing a valid will and who may, or should not, witness the will. But most fail to get those formalities right.

A bigger problem is the number of people who haven’t made wills at all or who think that a 'letter of wishes' or a note of 'instructions on my death' will do the trick – they won’t!

Likewise, properly drafted but out of date wills also prove a problem

The most challenging wills, prepared without professional assistance, are those worded in such a way that produce a result that’s clearly at odds with what the deceased would have wanted.

The sort of wording that proves either ineffective or which produces an entirely contrary effect to that intended normally falls into one of the following categories:

·       It just doesn’t make sense; or

·       It makes the wrong sense; or

·       It doesn’t have legal effect; or

·       It doesn’t cover a likely change in circumstance, a specific house or car no longer being owned at death, for example, - or having further children;

·       It doesn’t capture the whole estate or cover the ‘what if’ of, say, a beneficiary pre-deceasing (perhaps leaving a ‘partial intestacy’).

The most common problems stem from an inclination to think of one’s estate in terms of individual assets, investments and bank accounts and where you’d like each to go. Thy Will Be Done, on the other hand, encourages clients to think of their estate, for most part, as one big pot of assets to be divided up. Dividing the whole, as opposed to specifically allocating the component parts, should mean that the will still works, regardless of the change in size or composition of your estate by the time you die.

A gift of a specific asset (my BMW car or my house, 25 Acacia Avenue, Guildford) will fail if you changed car or moved house at the date of your death. Given that your house may well be your most valuable asset, failure of any gift of the house means that the intended beneficiary of the major part of your estate will be severely disappointed.

Similarly, a gift to a person who dies before you will fail. Unless you cover off what will happen if a beneficiary does then, if it were a cash gift, the amount will fall into residue. If it were, itself, a gift of a share of residue, then the share has no-where to go… and it will be divided in accordance with the intestacy rules.

If you’ve worked out the value of your estate now, and left a raft of cash gifts to reflect your current wealth now, then there’s an issue if your estate reduces in value between now and death so there’s insufficient to cover all the gifts. The ‘abatement rules’ will then kick in and the value of the gifts will reduce proportionately.

Additionally, some wording is too vague to be effective – £100 to ‘each of my closest friends’ for example.  

Some gifts may fail because the property doesn’t pass by will. The most common example is attempting to leave by will your half share in a house owned jointly as ‘joint tenants’, when it passes automatically to your co-owner regardless of what your will says. The same rule applies to joint bank accounts.

Some wording is simply and truly ‘wobbly’ - the meaning isn’t clear and the deceased’s intentions hard to determine. Many families then have to apply to the Court as to the construction of a particular wording.

Where there’s evidence that particular wording was a ‘mistake’ (or, rather, ‘clerical error’ as per Section 20 of the Administration of Justice Act 1982) or where evidence can be deduced that the wording of the will didn’t reflect the deceased’s intentions, then an application will haveto be made to the Court for the will to be ‘rectified’.

Having your will prepared by Thy Will Be Done removes the risk of ineffective drafting and is the best advice.

Better to spend money now getting things right, rather than substantially more money (along with time and hassle) sorting out drafting issues after your death or leaving a will that doesn’t reflect your wishes.

Don’t forget to review the will from time to time, just to make sure it still makes sense in the light of any changes in personal and financial circumstances, wishes and relationships.

Thy Will Be Done automatically contact our clients every 5 years for a review and update so once you have engaged us we will not let your forget in the future.