Are DIY Wills Legal?
Section 9 of the Wills Act 1837 outlines the requirements that need to be met in order to execute a valid, legal Will. It states that the Will must be voluntarily made in writing and signed by the testator or testatrix (person who’s Will it is), or in some circumstances by someone on his or her behalf and in their presence. It must be the intention of the testator to bring the Will into effect when signing it and therefore they must be of sound mind and have a full understanding of the Will.
The Will must also be signed in the presence of two or more witnesses and those witnesses must also sign to attest to this in the presence of the testator; both the witnesses must be over the age of 18 and of be of sound mind. It is also necessary to note that the witnesses and also the spouses and civil partners of the witnesses cannot benefit from the Will they are witnessing. Theoretically, provided all these conditions are met, a DIY Will kit could be considered legal.
However, when making a “Do It Yourself” Will, the bigger issue concerns the contents, language and implications of the resulting Will. The foremost reason to create a Will is to control the distribution of our Estates, ensure that our loved ones are looked after and to have our wishes known and implemented. A Will kit is very basic and cannot cater for the wide scope of individual circumstances and situations of modern day society. We’ve highlighted for you just a few of the common circumstances which make a DIY Will difficult to account for:
- Many modern day families incorporate children from previous marriages and it is important to ensure your Will is drafted correctly in order to reflect your wishes. Something to consider - Do you want your step children to inherit from your Estate or only your biological children?
- Will kits cannot provide for more complex requirements such as the inclusion of Trusts to protect your loved ones inheritance. Having your Will professionally drafted ensures that your Will caters to your individual circumstances and requirements. For example, a minor inherits at the age of 18 by default and their inheritance must be held in trust until this time. Many people feel that 18 is too young to inherit and want to specify a higher age of attainment. A professionally drafted Will can include a personally specified age of attainment.
- Many people do not realise that marriage can revoke a Will and regretfully do not update their Will after marriage. This often leads to testators unknowingly dying intestate (without a Will) and their recorded wishes not being adhered to. A drafter would explore your personal circumstances and can include a contemplation of marriage clause to your Will so that marriage to your partner would not revoke your Will.
- Many people will chose to leave their entire estate to their partner or spouse. But what happens if they predecease you or you both die together? Your estate would be dealt with as under the laws of intestacy and there would be no control over who benefited. A professional Will writer can draft your Will to appoint reserve beneficiaries to cover alternative scenarios.
- Many DIY Wills are ambiguous and unclear which can lead to confusion, disputes and delays during the administration of the Estate, therefore making the Will vulnerable to being contested. More importantly, if your Will is not worded adequately then your Estate may be misinterpreted and not distributed as you had intended. Professional Will drafters will use clear and precise language to ensure your wishes and intentions are clear.
- Many people forget to deal with the “residue” of their Estate and hold the misconception that they must describe the distribution of the wealth and possessions that they own. Although you should create your Will in accordance with your current circumstances, we cannot predict future circumstances and your Estate is continuously changing. What if you won the lottery but suddenly passed away without having time to update your Will? Your Estate would have to be subject to partial intestacy and there would be no control over who benefited from your Estate. A professional Will writer will include a clause for the distribution of your Residuary Estate. That is anything left to your Estate after the deduction of gifts, debts and funeral expenses.
- Laws are constantly being changed and updated. Worryingly, Will kits are often not updated in accordance with such changes. Furthermore, many online Will kits are not intended for use in the UK and it is important to ensure that the Will kit being used complies with the laws of your jurisdiction.
- There are many misconceptions regarding what can and can’t be specified in a Will. For example, many people want to specify in their Will that they would like to leave an item to someone but want to include that when the beneficiary dies it is given to a certain person. Unfortunately, many people fail to realise that once an item is gifted to someone it is then theirs to do with as they wish unless a trust is established. Such an instruction could also be misinterpreted to mean that the initial beneficiary is in fact holding the item in Trust for the intended beneficiary. A professional Will writer can advise what you can and what you can’t include in your Will and can compose appropriate clauses to ensure your wishes are carried out.
- Many DIY kits are hand written and thus it is important that handwriting is clearly legible in order to reduce the risk of confusion and misinterpretation. A common misinterpretation can be related to gifts of money. Has a gift of £50.00 been made? Or a gift of £5000?
- Many people do not realise that their Last Will and Testament does not solely record their wishes for the distribution of their Estate but also offers the opportunity to state their funeral wishes and appoint guardians for their children. Unfortunately many Will kits do not make people aware of this despite the importance of parents naming guardians for their children and other important decisions which a professional Will writing would go through with you.
- Making alterations is a common mistake made when making a DIY Will. The worse thing that can be done is crossing part of a Will out or editing it. It is highly likely that the Will or a clause could be invalidated as there would be no certainty that it wasn’t amended after death. When a Will needs updating a Codicil (a supplement that explains, modifies or revokes a Will) or a new Will must be made.
In conclusion, if a DIY Will is carried out correctly they can be deemed legal. However, your Will is one of the most important documents you will ever make and it is very important that your wishes are carried out as intended in order to ensure our family and loved ones are looked after when we are gone. Will kits can often lead to ambiguity and uncertainty leading to confusion and thus prolonging the administration of our Estates and causing stress for our loved ones. Most worryingly is the high risk of misinterpretation and your wishes not being acknowledged or adhered to.
A professional Will writer will explore your individual circumstances and ask questions to ensure that your Will is personal to you, while using clear and specialised language so that your wishes are clear. Your Will writer can also offer advice and answer any questions to ensure that you understand your Will and the implications you are bringing into effect by signing it (this is a required for a legally valid Will). Most importantly having your Will drafted professionally gives you the ability to relax and be assured that everything is taken care of.
If you have any questions about your Will or estate, do not hesitate to get in touch with a member of the Redstone Wills team today and we’d be happy to help.