12.06.20

In recent years there has been a rise in the number of low-cost online Will writing services and people creating homemade Wills. This blog takes a look at some of the problems these types of Wills can cause and the benefits of using an experienced lawyer such as a solicitor or Legal Executive to assist you in creating one of the most important documents you will ever create, ensuring your hard-earned estate passes as per your wishes.

Protection from claims

Contested Will claims and estate disputes are continuing to rise, even when the dispute does not reach Court they incur significant costs and delay the administration of the estate.  It’s important to note that even if the claim is unsuccessful some of these costs are likely to be paid for from the estate of the person who has died. It is estimated that up to 10% of a person’s estate can be absorbed in the additional fees associated with probate disputes. This means less of your estate will pass to the people you wish to benefit under your Will.

In addition to the financial impact to your estate, the emotional strain on members of your family and the effects on their relationships of such a claim can also be huge. A study has suggested that poorly drafted or ineffective DIY Wills are to blame for a prolonged probate ordeal for 38,000* families per year. Obtaining professional advice when writing your Will makes it much more difficult for challenges to be successful.

The grounds in which a Will can be contested are:

• The person making the Will did not have the mental capacity to put the Will in place;
• The person making the Will did not understand its contents;
• The person making the Will was pressured or influenced into writing the Will by someone for their own benefit;
• A family member alleging that the Will did not make sufficient provision for them.

Evidence showing that the person met with an experienced lawyer who was satisfied of their mental capacity along with the lawyers attendance notes of the meetings and detailed explanation of the clauses will help protect your Will from any such claims. In addition to this, in cases of uncertainty or other reasons where a challenge is likely, a lawyer may arrange a formal mental capacity assessment which will provide further evidence against any claim.  Through gathering all the necessary information from you, an experienced lawyer will be able to assess whether there is anyone who may make a claim based on the terms of your Will and if so, guide you through making a detailed signed statement of your intentions and motivations. Again, this will stand as good evidence to provide a robust defence to any claims made.

In the unlikely event something goes wrong where a regulated and insured lawyer has drafted your Will, your estate or a disappointed beneficiary may have remedy from the Will drafter.  It is therefore important to check the person making your Will is regulated and insured.

Certainty

Many of the online or DIY options may result in possibilities or options not being considered. Essential points such as substitute beneficiaries, meaning if an intended beneficiary dies before you, can easily be overlooked when using a DIY Will. Ultimately this could mean the gift passes by intestacy to someone who is not even mentioned in your Will.

There are other rules of interpretation within Wills which may mean your assets may not pass as you intended.  If you leave a specific item to someone, such as ‘my shares’ which are then sold that person will not receive anything. If you leave a sum to your grandchildren this will mean your grandchildren who are alive at the date of your death, any born after would be excluded.

Other simple errors such as incorrect names and addresses of individuals or charities and other uncertainties in the wording used could also cause increased complexity, costs and delays to the administration of your estate. Particularly if the uncertainty is such that those dealing with your estate need to apply to the court.

Legal & Tax Matters

Some of your assets may not actually be covered by the terms of your Will. This can include assets that are jointly owned, for example your home. This could mean your share in the property passes to a co-owner rather than the beneficiaries in your Will. An experienced lawyer will gather details of your assets and advise you of any issues that may arise.  They can assist in changing the type of joint ownership where necessary.

Whilst you may think you require a straight-forward Will this is often not the case, due to the increase in complex family structures and arrangements, your Will may require more careful thought. Using the example of someone who has remarried after having children in an earlier relationship, it may be common in such a case that the person making the Will would like their children to benefit from their estate rather than it passing to their spouse and then possibly to their current spouse’s family under their Will. However, this is often complicated by the fact that in most circumstances a large proportion of a person’s estate is the home they live in and they would not want their spouse to be left without a home. In such a case, it may be beneficial to include a specific Trust in the Will to allow the spouse to live in the family home during their lifetime.

A further benefit of having experienced professional advice when drafting your Will is that the Inheritance Tax position will be fully considered. The Inheritance Tax rules are complex and require careful consideration to make sure that any liability is minimised.  For example, adding a right for someone to remain in the family home in the Will of an unmarried cohabiting couple could result in the loss of up to £175,000 tax-free allowance and an Inheritance Tax liability that has to be paid.

A Will drafted by an experienced lawyer will help protect from possible claims, provide certainty and ensures your Will is unique to you and meets your individual requirements.

If you are considering putting in place a Will or you would like to review and update your existing Will, then please do get in touch.

* Source: Co-operative Legal Services