In the worst-case scenario, this could result in an expensive court case to establish your intentions.
The Covid-19 pandemic and lockdown have quite understandably prompted many people to prepare their own Wills or use online Wills services. This is certainly cheaper than getting a Will drawn up by a solicitor, but that doesn’t mean it is the best option.
There are several pitfalls when making a Will and getting it wrong could render your Will invalid, result in your wishes being ignored or lead to expensive disputes between your beneficiaries.
Here are five of the most common problems that arise when people make a Will without taking legal advice.
If a Will is not signed and witnessed correctly, it will be invalid. This would mean that rather than your assets being distributed in the way you wanted the intestacy laws will apply, possibly with quite different results.
The proper execution of a Will is not that difficult, but it is incredible how often people get this wrong. The person signing the Will (the testator) has to sign the Will in the presence of two witnesses. The witnesses need to see the testator sign the Will, but they don’t have to be in the same room. To comply with social distancing requirements, they could be outside or even witness the signature over a garden fence. The important thing is that both witnesses are present at the same time, can see the testator and each other sign, and the Will remains in their sight the whole time.
Despite the lockdown and social distancing, these rules have not been relaxed. A Will cannot be executed online, and the requirement for signing in front of two witnesses remains.
Other requirements are that the testator’s signature is clear and that the Will is correctly dated. You’d be amazed how often Wills are returned to me either undated or dated incorrectly (despite explicit instructions) and have to be executed again.
2. The wrong witnesses
The identity of the witnesses is also important. If a witness (or their spouse or civil partner) is a beneficiary under the Will, the gift to that person (be it a cash sum, a specific gift or a share of the estate) will fail.
3. Undue influence
It’s not hard to imagine that some vulnerable people, especially elderly people, will have been put under pressure to execute Wills in favour of unscrupulous beneficiaries during the lockdown. This pressure may have been difficult to resist if the testator was reliant on the beneficiary and was unable to speak freely to friends or family members.
If a Will is executed as a result of undue influence, the Will be invalid. Proving undue influence is not always easy as it requires showing that the testator was coerced into making the Will and didn’t act voluntarily.
I always insist on seeing a testator alone to make sure the Will reflects their true wishes and isn’t being made at the behest of someone else.
4. Lack of clarity
Legal wording isn’t always straightforward, and it can be difficult to get it right if you do it yourself. If there is any ambiguity about what you intended, you risk your wishes not being fulfilled or there being a dispute between the beneficiaries. In the worst-case scenario, this could result in an expensive court case to establish your intentions. Instructing a lawyer will ensure your wishes are clearly set out in your Will with no room for argument.
5. Legal advice
A good solicitor will do more than simply make sure your Will reflects your wishes. They will advise you on the best way to achieve your goals taking into account your personal circumstances and those of your partner or family.
A solicitor can help with tax planning to reduce the potential inheritance tax on your estate. They can also advise on issues you may not have thought about such as how you deal with business assets or overseas property or appointing guardians for children under 18 and setting up trusts for your children or grandchildren.
If you would like to discuss making a Will, please contact Elena Stylianou at ES@portner.co.uk.