With the current climate of social distancing and avoiding mixing with people outside of your household as much as possible it might be tempting to consider writing your own will. After all, you may feel this is safer as you avoid the need to travel out to visit a will writer or have them meet you in your home. DIY wills are not without their dangers though, and this article will set out why they ought to be avoided. We will also look at what you can do to make sure you can still have a professionally drafted will put in place even during these times of social distancing.
What can go wrong with a DIY will?
1. Your estate planning might not be as simple as you think
Do you own property abroad? Do you own a business or a farm? Maybe you have a large estate and you would like to plan for the best inheritance tax (IHT) outcome. If so you might not be in the best position to write your own will as you would benefit from taking specialist advice on all of those matters.
A professional could advise you to make sure you have an efficient estate plan in place. This could mean using more complex planning that you may not have been aware of such as trusts and making sure you’re aware of the IHT allowances available to you and how to make the best use of them. You may save money initially by writing your own will instead of paying a professional, but in the end it could cost your estate much more in taxes that could have been mitigated.
2. You might not be doing enough to protect your estate from claims
If you are planning on excluding someone who might expect to benefit from your estate you may not realise that the law allows certain people to apply to the court after your death for some provision from your estate if your will failed to make ‘reasonable’ provision for them. Professional advice will benefit you here. A will writer will be able to tell you who may have a claim against your estate and what can be put in place to mitigate their chance of success.
3. The will might not be valid
For a will to be legally valid it has to meet certain requirements set out by law, specifically section 9 of the Wills Act 1837. If a will isn’t signed and witnessed correctly then it won’t be valid and it will have no legal effect.
Getting the witnessing right is key, and with the Covid-19 situation at the moment this is causing some difficulties. You need two witnesses to watch you sign your will and to then sign themselves afterwards. At the moment it may be tempting to ask your witnesses to watch you sign remotely, for example via Skype or Zoom, but sadly this isn’t allowed so a will witnessed in this manner won’t be valid. It would be an easy mistake to make in a DIY will if you weren’t familiar with the signing requirements though.
4. The will might be valid but certain gifts might fail
Your DIY will might be validity signed and witnessed but there is still a danger that your wishes won’t take effect or parts of your will might fail. The main issues you could face are:
If one of your beneficiaries or their spouse or civil partner acts as a witness to the will then any gift to them will be void.
The wording used in the will is ambiguous or uncertain.
The will attempts to gift your ‘share’ in a property that you own with someone else, but the property is owned as joint tenants so the gift in the will fails.
The residuary estate is not properly dealt with so some of your estate passes on intestacy – this is where assets pass to certain relatives in a hierarchy, so not necessarily to the people you wanted to benefit
Remember, if something in your will is uncertain you won’t be around to provide any clarity to resolve any issues. That’s why it is so important to make sure the wording in the will is clear, certain, and the correct legal terminology is used where appropriate.
5. You didn’t appoint someone to deal with your estate after death, or to care for your minor children
A will should appoint executors to deal with your estate after you pass away. They will be responsible for dealing with your assets, your debts, declaring and paying any relevant taxes, and ultimately making sure your estate passes on to the people you want it to. It is important you appoint someone you trust to take on this role, otherwise someone will be appointed after your death and that person may not be the most suitable executor.
If you have minor children you have probably given some thought to who you would want to care for them if anything happened to you. It is a common misconception that minor children will automatically pass into the care of their godparents or your next closest relatives, but this isn’t the case. To make sure that people you know and trust take on the care of your children you would need to appoint them as a guardian, and this can be done by will. This is something that is often overlooked in DIY wills, simply because the person making it wasn’t aware it was something they needed to do in their will!
How do I have a professional will drafted safely during a pandemic?
So now you’re convinced that a professionally drafted will is the way forward but still concerned about how you can safely arrange for this. Don’t worry, there’s no need to put yourself at any unnecessary risk and you can still safely socially distance while having a will professionally drafted.
Many will writers are offering to take your instructions remotely so there is no need for you to visit their offices or for them to visit you in your home. You can give your instructions from the safety and comfort of your own home without any worry. The methods they offer vary but range from video calls so you can still speak face to face (in a sense) or telephone calls.
If you aren’t able to give your instructions remotely then an in-person visit is still possible and many will writers are still offering these type of appointments. In that case we would encourage you to ask the will writer what their process is and how they will take your instructions in person while keeping yourself and them safe, and only arrange to meet with them if you are happy with their response. This may mean meeting outside if possible, wearing PPE, and ensuring that at all times a safe distance is maintained.
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Advising on Wills/Trusts/Probate/Powers of Attorney
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Office: 01903 533681
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Steve Worsfold has been an Affiliate Member of the Society for 15 years.