Posted: Friday 17 August 2012
DIY Wills – Yes or No?
There is a never ending stream of adverts from the likes of Homebase, B&Q, etc telling us all now is the time to spruce up our gardens and decorate our home. The message is that DIY is wonderful and should be embraced by all. On reflection however there are some circumstances where this is not necessarily the case.
While no one wants to spend money instructing a solicitor if they don’t have to, deciding to write your own Will is one area where great care needs to be taken. Many of us think that writing a Will is a straightforward exercise and why would we need to have a solicitor involved. So what is the downside of a DIY Will?
Instructing a solicitor to prepare a Will on your behalf does not necessarily mean exorbitant costs. If you prepare things in advance and can present your solicitor with details of your assets, family members and testamentary wishes this cuts down on the work involved. One should also consider comparing the cost of instructing a solicitor to prepare a Will with the cost of instructing a solicitor to rectify matters following someone’s death, when it transpires that the Will is not valid or does not reflect the testator’s wishes.
One of the most common problems that come to light following a death and discovery of a “homemade” Will is that the Will has not been signed properly. Many testators either fail to sign their Will at all or fail to sign it in the right place. Even if they have signed it properly they fail to get their signature witnessed and as such the legal formalities have not been met.
Another issue is that of executors. One of the main reasons to make a Will, aside from disposing of your estate, is to ensure that your estate is administered by the people you choose. It makes sense to appoint people you trust and people of a younger generation. “Homemade” Wills often either fail to appoint executors completely or appoint people who have themselves predeceased the testator, or are elderly and unable to carry out their duties. While this does not invalid your Will it does mean an application to court to have an executor appointed. The executor appointed by the court may not be someone you would have chosen to carry out your wishes and entails additional costs.
Another problematic issue is that of alterations that have been made to the Will. If a mistake is made when drafting a Will it should only be altered by crossing it out, making the change and initialling the alteration. If a mistake is noticed after the Will has been signed and witnessed it cannot be changed, except by making a new Will or a Codicil. Legal expenses will be incurred to rectify the situation.
Another issue which often arises is the actual transfer of assets on death. A common problem is where a property is held jointly and the title to the property also contains a survivorship clause. This means that on the death of the first party their share in the property automatically passes to the survivor. This is not something usually considered by testators when preparing their own Wills and any attempt to transfer ownership of such property in a Will is not effective. Another common issue is failing to effectively identify beneficiaries or the items you are bequeathing.
In cases where assets are left to young children a “homemade” Will does not normally contain trust provisions and children may find themselves in receipt of substantial sums at a very young age. A solicitor would have discussed this issue with the testator.
Perhaps even more importantly, the failure to consult an expert when drafting a Will can often subject the estate to a higher amount of Inheritance Tax than might have been the case. A solicitor with expertise in drafting Wills can advise testators on the most tax efficient way to pass on their estate.
The moral of the story is that there are times when a touch of paint will do the job and there are times when you need to get the decorators in.
To discuss this further contact Julie McMahon on 0141 274 1108 or email julie.mcmahon@morton-fraser.com
