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24 November 2019

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Do DIY Wills Lead to Probate Disputes?

Posted by: David Jones

DIY wills are becoming increasingly popular. More and more people are enticed by the idea that they can simply buy a template, fill it in and it’s done, but is it really that easy?

Alongside an increase in the number of DIY wills, we’re also seeing a growing number of inheritance disputes and wills being challenged. This begs the question: do DIY wills lead to probate disputes?

In this blog, we’re going to explore the general concept of a DIY will, and some of the reasons they’re more likely to be disputed after your death.

What is a DIY Will?

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A DIY will is just what it sounds like — it’s a will that you can do yourself. 

Although the idea of being able to just go ahead and write your own will seems enticing, there is a reason why solicitors write them. 

While the idea of writing down how you want your possessions to be passed on seems straightforward, it’s important to remember that a will is a legal document. Therefore, there are certain legal steps you need to take.

So, while it’s not difficult to get your hands on a DIY will, making sure it is legally valid is not so simple.

Of course, you will never know whether your DIY will is legally binding or not as a dispute will only arise after your death which your loved ones will have to resolve. So, you can take writing a will into your own hands, but the question is whether it’s worth doing so.

What Are the Main Risks of a DIY Will?

Validity

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In order for a will to be considered valid, it must comply with Section 9 of the Wills Act 1837, which says:

  • The will must be in writing and signed by the Testator (person to whom the will applies)
  • If the Testator is unable to sign, it must be done by someone else who has been directed to do so by the Testator and in their presence
  • The Testator must have intended the will to be valid when signing it
  • The Testator must sign their will in the presence of two witnesses present at the time. The witnesses must also sign the will

Fail to make sure your will is valid and it can easily be challenged, meaning your estate could be distributed according to the rules of intestacy, instead of your wishes.

Being Unclear

Hard decisions have to be made when you’re in the process of drawing up your will, which means there’s the chance that not all your beneficiaries will be happy. This is tough enough and can be made far worse if your wishes haven’t been made clear in your will.

The growing use of DIY wills and probate is partly to blame for the increase in challenges and disputes, which can cost thousands of pounds and could take over 12 months to resolve.

Without clarity in your will, your executor or beneficiaries may need to apply to court for the meaning of your will to be determined. This all costs money, which will most likely come out of your estate, leaving less for your beneficiaries. If it doesn’t come out of your estate, it means one of the people raising the dispute has to pay. 

People want to save money, but writing your own will can easily lead to confusion and a legal dispute. In the end, you will probably spend more money.

Identifying What You Own

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If you’re planning to do your own will, a good first test of whether you’ll be successful is to try to think of everything you own.

Perhaps you have an object that doesn’t hold any value, but it’s something which you and your family cherish, and you’re hoping to pass it down to the next generation. If you forget to include it in your will, who knows where it will end up.

Solicitors know what questions need to be asked to identify everything of monetary and personal value, so you can be confident that nothing will be left out.

If you’re not working with a solicitor, then you can spend weeks or months going back to your will and adding in extra items, and even then you can still miss a few things.

Missed Opportunities

If you have assets that you want to protect for future generations, or you want to limit the impact of Inheritance Tax on your estate, there are steps you can take.

Most commonly, you may want to set up a trust. This can be very advantageous but is complex to set up as the wording needs to be carefully considered.

If you use a DIY will, you miss the chance to include estate planning techniques, such as setting up a trust. This can limit your options when it comes to how your estate is dealt with after your death, as you won’t have had any expert advice from a solicitor.

Losing Your Will

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If you decide to go forward with a solicitor, then they can help ensure that your will is secure. 

If you write your own will, then it may be decades before it is needed. In that time, it is easy to lose track of it, and if you do, that could mean that your wishes are not followed.

This is because the lost will is likely to be assumed destroyed by the court, and your executor will have to prove this is not the case and the will is still valid.

How Can a Solicitor Help You?

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There are a whole host of reasons, especially in cases which include high-net-worth estates, why you should use an experienced solicitor to draft your will.

However, if you’re still not convinced about what a solicitor brings to the party, here are a few benefits:

  • Speed: Experienced solicitors that draft wills on a regular basis have seen it all. This means you can put together clear, comprehensive and valid wills quickly, even where your wishes are complex.
  • Support: Only in rare circumstances will a solicitor not undertake extra work for an estate, and they often complete actions that most of us wouldn’t even think of. When it comes to unforeseen estate surprises, having an experienced solicitor to call for support is a huge comfort.

Extra advice: A will is just one part of successfully planning your estate. The problem is most people don’t know the options available to them. A solicitor solves this problem and can highlight options you didn’t know existed.

Is There Ever a Good Time to Write Your Own Will?

The short answer is no.

As enticing as it may be to write your will by yourself and save a few pounds, resist the urge. In the long-run, it’s only going to increase the chances of your will being disputed, which will cost far more.

In contrast, working with an experienced solicitor to put together your will can give you the comfort of knowing you’ve done everything you can to ensure your estate is handled the way you want it to be.

If you’re in the process of putting together your will now, or you want to make amends to an existing one, get in touch to find out how Glaisyers can help you.

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David is Executive Partner and Head of Litigation. He is consistently ranked in the Legal 500 for his tenacious problem solving and business acumen, acting in complex, high value disputes for successful entrepreneurs and corporates.

David Jones - Executive Partner and Head of Litigation

To discuss how Glaisyers can assist you contact David Jones on David.Jones@glaisyers.com or via 0161 832 4666.

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