Can You Write Your Own Will?

Elspeth Neilson

Is writing your own will legal?

While writing your own will is technically legal and can be valid if executed correctly, the potential consequences of a poorly drafted will are almost limitless, the worst-case scenario being that the will is entirely invalid. If invalid, then you have lost control of who inherits your estate, and it instead passes according to the intestacy rules.

• Also see: Is A Handwritten Will Legal?

The problem with writing your own will

A badly drafted will can result in substantial legal fees trying to rectify the situation and these fees are almost always well in excess of the cost of a professionally drafted will. Such problems affect 10,000s families every year and result in additional stress for executors, who are often close family or friends.

Whilst drafting the will itself is clearly a key part of our work, clients are often surprised by the other areas that are considered part of the will drafting process. For example, a professionally drafted will should consider taxes and potentially save a significant amount in unnecessary tax.

Careful consideration must also be given to potential challenges to the will, for example, as a result of the alleged lack of capacity of the testator or cutting someone out of your will. If properly considered, potential issues can be avoided.

However, if ignored the result can be a costly legal battle. Professional will drafters understand the intricacies and nuances of will clauses as this is what they do daily.

That is not to say that a homemade will cannot be considered in some circumstances where your affairs are very straightforward. However, you should proceed cautiously and ask yourself if it is worth the risk or if it is a false economy.

Why professional advice is important

Professional wills can also be, to some extent at least, future-proofed by providing for future changes in circumstances, for example, by including substitute beneficiaries or executors or by being made in contemplation of marriage and so not revoked on your wedding day.

DIY wills often cannot accommodate this. A professionally drafted will can save you the time and effort of having to prepare a new will and will make you aware of wider issues surrounding the preparation of wills and when they should be reviewed.

Clients often think their circumstances are straightforward, but after taking instructions and discussing their background, this is frequently not the case.

Common problems with DIY Wills

• No executors are appointed.  Executors are the people who administer an estate. It is essential that the chosen executors are trustworthy and will follow the testator’s wishes. (Read these blog post Beware of appointing your children as executors & Dealing with debts as an executor)
• Beneficiaries are not clearly identified.  This makes it difficult for the executors to distribute the estate and beneficiaries to establish their entitlement under the Will.
• Estate not fully disposed of.  A partial intestacy arises if the Will does not dispose of all of the testator’s assets.  The Intestacy Rules do not provide for certain people, such as unmarried partners, and they do not take into account any estrangements.
• Inadequate trust provisions.  DIY Wills frequently do not contain appropriate trust provisions for children or vulnerable beneficiaries.
• No witnesses.  In most circumstances, two independent people should witness the testator’s signature.
• Not dated.  This creates uncertainty in establishing the last Will.

DIY Wills’ blamed for rise in probate disputes

The Law Gazette has recently reported that ‘DIY Wills’ are being blamed for the rise in probate disputes, and this is certainly something we have encountered.

Homemade wills are commonplace, and this is not surprising with DIY kits available from the high street. While preparing your will in this way may save you money in the short term, doing so is risky and could have serious consequences when you are gone.

Contact Osbornes Law

Taking professional advice when making a will should mean these problems are avoided and give you the peace of mind that your estate will be administered properly and distributed in accordance with your wishes.  And in the long run, the costs of rectifying a Will or resolving a dispute in court will far outweigh the initial costs of a professionally drafted Will.

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