Why I love a homemade Will
I love clients coming to see me to help with probate when the person who died made their own Will. You may think that a strange thing for me to say when I spend so much time extolling the virtues of going to see a specialist solicitor for proper estate planning advice.
It’s just that homemade Wills make for such interesting probate cases. They often read like exam questions designed to teach law students what not to do in practice! Here are some of the problems I have had to deal with over the years which have had very unintended (and avoidable!) consequences for those involved:
- The Will simply not being valid because it has not been correctly signed and witnessed. Chances are the first time this is spotted is when it is looked at on death and it is too late to put any problems right. This might either mean that a previous Will stands or that the estate is administered in accordance with the intestacy rules. Sometimes the Will is signed correctly but in the wrong place which can add to the paperwork required by the Probate Registry on death. If a Will has been witnessed by a beneficiary or someone married to a beneficiary then the gift to that beneficiary will fail.
- Certain words used in Wills have legal meanings that might not be apparent to the lay person. For example a Will leaving “all the rest of my personal property to my wife” did not include any land which in law is defined as “real property” and does not come within the definition of personal property. Even though it was obvious what this gentleman intended he used the wrong words. This meant that the land was not dealt with under the terms of the Will resulting in a partial intestacy – but luckily the wife in this case inherited it anyway under the intestacy rules.
- Wills leaving the estate to a beneficiary but with no provision for what is to happen if that beneficiary dies first. A well drafted Will always provides for plan B.
- The Will misses out something such as a revocation or attestation clause or even the appointment of executors. These problems are usually not insurmountable but can add greatly to the cost of the administration of the estate.
- The Will is not clear as to who benefits. Sometimes Wills are drafted with inconsistent provisions that lead the professionals scurrying for their law books for assistance with the interpretation. The worst case scenario is needing a Court to decide who gets what.
- The Will inadvertently sets up a trust which can be expensive to unpick.
If all of the beneficiaries are adult and competent they can agree to vary the terms of a Will to achieve the outcome that everyone thinks the deceased intended. However this can be expensive and any of the beneficiaries are children or do not have capacity then a Court order may be required.
The moral of the story – a homemade Will is better than no Will at all. But if you want to ensure that your loved ones have no problems on your death take some estate planning advice from a specialist who has hopefully seen enough homemade Wills to know what not to do.