Many high street stationers like W H Smith are now offering
“Write your own Will” kits for less than £10.
This seems, on the face of it, an absolute bargain for those people who
know they should have made a will but have neither the time nor money, so they
believe, to speak to a qualified practitioner with legal training. Many of these kits seem very straightforward
– you just fill in the blanks and away you go – but is it really that simple?
In deciding the future of your estate there are some
fundamental points to consider: for example, did you know that if you leave a
close family member out of your will that he or she may be able to claim on
your estate after you have gone under current legislation? Do you know who would be entitled to make a
claim, and what kind of wording should be used in the will to indicate what
your general wishes were and why? This
may not prevent a claim but it may give some indication to those left behind as
to why the provisions of a will were drafted as they were and prevent confusion
and potential animosity between family members.
Without taking into account the legislation protecting dependants and
their claims on the estate, your will could be invalid despite having following
the instructions on the document supplied.
Whilst the forms offered by stationers and widely available
for use on the internet are, in most cases, originally drafted by a person with
legal training, there is no advice given with the use of these “boilerplate”
(or “one size fits all”) documents.
Therefore the implications of the gifts a person is making (or possibly
not making in some cases) are not explained; nor are the tax implications or
the consequences of making a Will which excludes a close family member. More distressingly for those left behind,
these mistakes can mean in fact not only are there unexpected financial
consequences but in some cases that the “will” is not valid at all. One of the key parts of the document is the
attestation clause, i.e. the part that is signed and witnessed, and if this is
not done correctly the will could not be proved as valid following the death of
the testator (the person making the will).
Therefore the whole idea, which was not to die intestate (i.e. without a
will), is made a mockery of and the
intestacy legislation kicks in. This is
a very strict regime which allows certain family members to inherit particular
portions of an estate in order of priority.
For example, a mother who lives with her partner and her child who has
not made a will would find all of her assets going to her parents – who may
neither want nor need anything – whilst the child and partner are left
without. Live-in partners and
stepchildren cannot inherit if a person dies intestate.
Occasionally, if a person dies without any remaining
relatives, and no valid will, his estate will revert back to the Crown, despite
the presence of a live in partner. This
means that all assets held by that person would revert to the government whilst
the person with whom he or she had shared his life, potentially for a number of years, would be left with
nothing.
There is a common misconception that “common law marriage”
provides rights to unmarried couples in the way that the contract of marriage
does to Mr and Mrs. This is not the case
and unmarried partners, particularly with children, should be careful not to
complete DIY wills on the basis of general assumptions made by lay people. Equally the introduction of civil
partnerships has altered the position for same-sex couples – I was asked
recently if a ceremony, but not a formal civil partnership, was enough – the
answer is no. If the paper contract does
not exist then in law there is no spouse.
In addition to ensuring that the correct people inherit what
you would like them to (difficult if you do not know the rules and do not have
a lawyer to advise you on them at the initial stage), inheritance tax can be
relatively complex and really does need discussion before you decide what to
do. There are a number of devices that
can be utilised to minimise the risk of inheritance tax such as the method by
which jointly owned property is owned, the creation of a separate nil rate band
discretionary trust in your will, and lifetime gifts. It is impossible to give these matters full
care and attention by ticking boxes or filling in gaps on a basic document
designed to work for every Tom, Dick and Harry.
Aside from the obvious danger that a DIY will not be valid
for one of the reasons already stated (which in one recent case led the latter
will to be held void, with a previously drafted will with very different
provisions being held valid and thus disappointing the intended beneficiaries
of the second in no small way), there are worrying aspects relating to
fraud. In 2007 a case was unearthed in
which a daughter was found to have forged her mother’s signature on a DIY will
which the daughter then attempted to prove as original after the mother’s
death. In this cause the daughter should
have been entitled to £17,500 but tried to claim £64,000. Fortunately her two siblings challenged the
assertions she made and graphology (handwriting analysis) was used to determine
that the mother had not in fact signed the will herself.
Contentious probate legislation is increasing as the laws
protecting dependants have been used in a number of cases to establish
significant claims against various estates; with the increasing popularity of home-made or
DIY wills, this is only likely to continue.
With all these potential problems, how much money would you really save
by going to WH Smith?
PS If you decide you need a solicitor to write your Will, head over to Setfords website. for a bit more info. If you think you'd like to talk to someone who does more than just fill in a form, drop me a line here.
