Making a Will is extremely important and yet there are many people who do not have one or have one without realising that it is invalid. No matter whether your wishes are simple or complex, having a properly drafted Will is vital to ensure that your wishes are carried out after your death.

There are different options available when deciding how to make a Will, there are the over-the-counter supermarket Wills as well as online downloads, these methods of writing a Will are known as ‘home-made Wills’, of course, this includes simply writing a Will yourself as well. There is the option of using a Will writing company, it is worthy to note that Will writers do not necessarily have any legal training and are not regulated. The final option available is to use a solicitor, who will have years of training and experience behind them as well as being strictly regulated.

The purpose of this blog is to highlight why it is beneficial to have your Will drafted by a solicitor and the pitfalls of a badly drafted Will.

Legal Terminology

There is often a lot of legal terminology which needs to be included in the Will, that for a lay person, it is easy to misunderstand or misuse. This can result in the Will meaning something completely different than what was intended. Home-made Wills can generally be ambiguous which leads to lengthy, bitter and expensive litigation between family members or/and friends. Wills that are drafted by inexperienced Will writers can also lead to the same outcome.

Solicitors are trained to use the legal terminology needed and are therefore the most reliable person to get your Will drafted correctly. Unfortunately, there are on occasion mistakes made by solicitors but, solicitors are regulated by the Solicitors Regulation Authority which means that there is someone to complain to, should it be necessary. Furthermore, solicitors must have indemnity insurance therefore either you or your estate will be properly compensated for any loss suffered as a result of the mistake made in the Will. Will writers on the other hand can be completely un-regulated and are not required to have any insurance.

Safe Storage

Any destruction or damage caused to a Will can make it invalid, therefore, the storage of your Will is another very important thing to consider. If creating a home-made Will, you must ensure that the storage location of your Will is protected from; fire; flood; theft; and can in no way be damaged or destroyed. You will also need to ensure that the Will can be found when needed but yet be somewhere confidential.

The Solicitors Regulation Authority has strict rules for solicitors to follow which relate to the storage of Wills. Wills held with solicitors must be kept extremely secure and there are rules that must be followed for when a firm goes out of business or is taken over. The Solicitors Regulation Authority keeps track of who takes over custody of all the Wills they were keeping so people can remain confident and informed of where their Will is being kept.

In comparison, Will writers may keep their Wills in an unlocked drawer, at home or send them to a storage facility where anything could happen to them. Further to this, if a Will writer goes out of business, the Wills they were holding could be lost.

David Durkin-Finch

Partner

David has a wealth of legal knowledge and experience, he's helped hundreds of clients and can ensure your final wishes are honoured.

Best Interests

In certain circumstances making a Will can be stressful particularly if there are family members who are trying to assert their influence on how you should leave your estate. There is a risk when making a home-made Will that you will succumb to these influences and create a Will distributing your estate in a way that you may not have wanted.

When using solicitors, there are more regulations that they must follow which ensure that your best interest is their paramount concern. It is therefore safe for you to talk to solicitors and voice your exact wants and concerns, they are an independent party who can assist with any difficult decisions that you may face with an unbiased view.

When ensuring that your best interests are met, solicitors will normally highlight to you any potential claims that could be made against your estate in the future. Without using a solicitor, you may have been unaware of the claim that someone could make against your estate on your death.

As well as the above, solicitors cannot proceed to make any Will where there is a suspicion of you being forced into making the decisions in relation to the Will. Solicitors are there to help and assist, this fact may be a comfort for you if you are facing a family disruption.

Finally, solicitors can discuss with you not only your wishes but the tax implications that may be applicable to your estate and point out small differences that could be made to reduce potential inheritance tax liability.

Challenges Post Death

A Will that is home-made is more likely to be challenged when compared with a Will made by a solicitor. The following are some of the reasons that challenges occur: –

  1. Wording can be unclear or misleading, which results in family members or friends arguing over the intended meaning of the particular clause concerned.
  2. The execution of a Will is incorrect. For a Will to be valid, the way it is signed is extremely important. The Will must be signed by the person making the Will, in the presence of two independent witnesses, who should also sign and write their details. The Will should also be dated. If one of these elements is missing, which commonly occurs with home-made Wills, the Will can be deemed to be invalid by the Probate Registry. It can be difficult and expensive to prove that the Will is valid in these circumstances.
  3. If a family member or friend doubts that you have mental capacity when signing the Will. The doubt of mental capacity can invalidate a Will and as the challenge will be raised after your death, there is little that can be done to defend the accusation. The family members or friends who are arguing that you did have capacity at the time of making the Will, will need to contact your GP or any carers that you may have had, as well as any friends who knew you well, to obtain witness statements from in order to prove that you did in fact have capacity at the time. This can be very stressful and time consuming for those loved ones involved.
  4. If a family member or friend believes that you were under pressure from someone else or being forced into making certain decisions in your Will then again, this can invalidate your Will if the accusations are deemed to be true by the Court. Once again, because you will be deceased, you will be unable to defend yourself or your estate and will therefore be reliant upon surviving family members or friends to help defend your decisions. This can be stressful and expensive, as well as time consuming for those involved.
  5. If you have excluded certain family members, they may be able to make a claim on the estate if certain conditions are met. For example, if they have been receiving financial support from you before your death but are excluded from the Will.

When making a Will with a solicitor, they attempt to avoid all these potential challenges to your estate, on your death, by highlighting to you the risks of making certain decisions and providing alternative options.

Solicitors will also write a proper ‘attendance note’ after the initial instructions meeting and after any appointment or conversation that you have with them. This is an accurate log of what was discussed during the appointment and can be used as evidence if the Will is challenged. The attendance notes are usually detailed and specific so that should a decision you have made be challenged on your death, the attendance note does the best job at defending your decisions as well as the solicitor who made it.

How Cleversons can help

I hope this blog has outlined some important considerations that you should have before deciding to make your own Will or use a Will writer. It may be very tempting to make a Will yourself or go with a cheaper Will writer when you compare the expense of creating a Will with a solicitor however, the costs incurred by your estate should it be challenged will be considerably more and cause significant delays in the administration of your estate.

Should you wish to discuss making a Will we are here to help. We can come to a place that is most comfortable for you, whether that be at your house, hospital, care home or whether you would like to attend our offices to discuss your wishes in private. Speak to one of our team today by calling 0800 368 5102 or by completing an online enquiry form.

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