I have been seeing more and more homemade Wills in recent years. I will freely admit that, as a Probate Solicitor, these fill me with dread. This is because homemade Wills usually lack useful administrative provisions, or worse, contain clauses which are unworkable or open to challenge. I would never recommend that people make homemade Will (see our blog DIY Wills Great News for Lawyers).
To give an idea of some of the problems we see, I have set out below a list of issues that I have come across with homemade Wills in the last 6 months alone:
This can be really problematic. A later Will does not automatically revoke an earlier Will, unless it explicitly states that it is intended to do so. If there is no express revocation clause, the new Will shall only revoke the old Will to the extent that it is contrary to it.
It is very common for people making homemade Wills to try and list all the assets in their estate. This is risky as assets invariably change over time. Any assets not included in the Will would pass under the rules of intestacy. If an asset has changed or been disposed of, then the gift will fail. For this reason, a professionally drawn Will would also include a clause dealing with the residue of the estate, as well as provisions for a gift to include any replacement asset (where appropriate).
This creates several issues: firstly, it is usually more efficient for inheritance tax reasons to pass estates between spouses. This is because assets passing to a spouse are exempt from inheritance tax. There are ways of doing this which still protect the assets and ensure that a surviving spouse cannot gift them away to other people during their lifetime.
Secondly, a spouse would be entitled to bring a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975 if reasonable provision has not been made for them. This can therefore lead to costly and stressful litigation. We often find that spouses are excluded from Wills for care reasons as the family do not wish the first to die’s estate to be eaten up by care fees. However, the Local Authority can bring a claim on the spouse’s behalf (and not necessarily needing the spouse’s consent) if the spouse is in Local Authority funded care. The best way to protect assets is therefore to include the spouse in the Will, but leave assets on the terms of a life interest trust (see A Quick Guide to Trusts for an explanation of how these operate).
We currently have a case in which the deceased wished both to provide for his minor children and also to leave his estate to his wife. To achieve this, he prepared a Will leaving his estate to his wife but directing her to use a fixed portion of the money for his children’s benefit. We are still trying to work through the practicalities of this particular case, but in essence, the deceased has accidentally created a trust for his children under his Will. As the Will was homemade, and the creation of the trust was unintentional, the actual terms of the trust and the powers of the trustee are unclear. There are also added complications in relation to the inheritance tax treatment of the funds now subject to the trust. It is not uncommon for this type of uncertainty to lead to an application to the court for clarification. Whilst this was the biggest problem with this Will, there were several others that have also taken time to fix.
The take home advice, repeated in this blog ad nauseum, is never draft your own Will! It is a complicated legal document and getting it wrong can wreak lasting emotional and financial turmoil.
If you are considering preparing a Will, or you are dealing with an estate involving a homemade Will, then please contact any member of our Wealth Management and Taxation team for further advice.